2011 Ohio Sunshine Laws Manual

2011 HIO SUNSHINE LAWS

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Attorney General

DITOR O AU F

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ATE OF OH ST

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An Open Government Resource Manual

Auditor of State

hio Sunshine Laws

An Open Government Resource Manual

2011

Ohio Sunshine Laws 2011 Dear Ohioans, The offices of the Attorney General and Auditor of State foster the spirit of open government by promoting Ohio’s Public Records Law and Open Meetings Law. Together, these laws are known as “Ohio Sunshine Laws” and are among the most comprehensive open government laws in the nation. Along with this 2011 Ohio Sunshine Laws Manual, our offices provide Ohio Sunshine Laws training for elected officials throughout the state, as mandated by Ohio Revised Code Sections 109.43 and 149.43(E)(1). By providing elected officials and other public employees information concerning public records and compliance, we help ensure accountability and transparency in the conduct of public business. The Attorney General’s Office and its Public Records Unit stand as one of the state’s foremost authorities on public records and open meetings law. The office provides training, guidance, and online resources. Additionally, the Attorney General has created a model public records policy. Local governments and institutions can use this model as direction for creating their own public records policies. This model policy and other online resources are available at www.OhioAttorneyGeneral.gov/Sunshine. As the government agency responsible for auditing compliance, the Auditor of State’s Open Government Unit also serves as a trusted resource for Ohio Sunshine Laws information and training. The Auditor of State website at www.auditor.state.oh.us features an Open Government page highlighting information concerning the Ohio Open Meetings Act, the Ohio Public Records Act, Records Retention and Ohio Certified Public Records Training. This manual is intended as a guide, but because much of open government law comes from interpretation of the Ohio Sunshine Laws by the courts, we encourage local governments to seek guidance from their legal counsel when specific questions arise. Thank you for your interest in promoting open government in Ohio. Very respectfully yours,

Mike DeWine Attorney General

Dave Yost Auditor of State

Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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Ohio Sunshine Laws 2011 Readers may find the latest edition of this publication and the most updated open meetings and public records laws by visiting our web sites. To request additional paper copies of this publication, contact: Ohio Attorney General Public Records Unit Re: Sunshine Manual Request 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 (800) 282-0515 or (614) 466-2872 www.OhioAttorneyGeneral.gov/Sunshine or Ohio Auditor of State Open Government Unit Legal Division 88 E. Broad Street, 5th Floor Columbus, Ohio 43215 (800) 282-0370 or (614) 466-4514 www.auditor.state.oh.us We welcome your comments and suggestions.

Acknowledgements Warm thanks to employees of the Ohio Attorney General and the Ohio Auditor of State whose contributions have made this publication possible over the years, with special recognition to the authors and editors of this edition:

Attorney General’s Office Public Records Unit: Assistant Attorneys General Jeff Clark, Lauren Lubow, Robert Moormann, Damian Sikora, and Lydia Arko; Administrative Staff: Kristen Montgomery, Cathy Kirby, and Erin Butcher-Lyden

Auditor of State Legal Division: Chief Legal Counsel William Owen and Director of Policy and Public Affairs Mary Amos Augsburger.

Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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Ohio Sunshine Laws 2011 200 Years of Sunshine: Reflections on Open Government Ohio Supreme Court Justice Charles Zimmerman: The rule in Ohio is that public records are the people's records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore anyone may inspect such records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the same. Patterson v. Ayers, 171 Ohio St. 369 (1960). Thomas Jefferson: Information is the currency of democracy. Patrick Henry: The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them . . . To cover with the veil of secrecy the common routine of business, is an abomination in the eyes of every intelligent man. James Madison: A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives. John Adams: Liberty cannot be preserved without a general knowledge among the people, who have a right and a desire to know; but besides this, they have a right, an indisputable, divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.

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Ohio Sunshine Laws 2011 Glossary When learning about the Ohio Sunshine Laws, you may confront some legal terms that are unfamiliar to you. Below are the more common terms used in this handbook.

Charter A charter is an instrument established by the citizens of a municipality, which is roughly analogous to a state’s constitution. A charter outlines certain rights, responsibilities, liberties, or powers that exist in the municipality.

Discovery Discovery is a pre-trial practice by which parties to a lawsuit disclose to each other documents and other information in an effort to avoid any surprises at trial. The practice serves the dual purpose of permitting parties to be well-prepared for trial and enabling them to evaluate the strengths and weaknesses of their case.

In Camera In camera means “in chambers.” A judge will often review records that are at issue in a public records dispute in camera to evaluate whether they are subject to any exceptions or defenses that may prevent disclosure.

Injunction An injunction is a court order commanding or preventing a person from acting in a certain way. For instance, a person who believes a public body has violated the Open Meetings Act will file a complaint seeking injunctive relief. The court may then issue an order enjoining the public body from further violations of the act and requiring it to correct any damage caused by past violations.

Litigation The term “litigation” refers to the process of carrying on a lawsuit, i.e., a legal action and all the proceedings associated with it.

Mandamus The term means literally “we command.” In this area of law, it refers to the legal action that a party files when they believe they have been wrongfully denied access to public records. The full name of the action is a petition for a writ of mandamus, if the party filing the action, or “relator,” prevails, the court will issue a writ commanding the public office or person responsible for the public records, or “respondent,” to release the records in dispute.

Pro se The term means “for oneself,” and is used to refer to people who represent themselves in court, acting as their own legal counsel.

Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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Ohio Sunshine Laws 2011 Table of Contents Glossary..............................................................................................................................................................iv Ohio Public Records Act Summary ...............................................................................................................xi Ohio Open Meetings Act Summary ............................................................................................................xiii Overview of the Ohio Public Records Act....................................................................................................1

I.

Chapter One: Public Records Defined .........................................................................2 A. What is a “Public Office”? .................................................................................................. 2 1. 2. 3.

Statutory Definition - R.C. 149.011(A)..........................................................................................................2 Private Entities Can Be “Public Offices”......................................................................................................2 A Private Entity, Even if not a “Public Office,” Can Be “A Person Responsible for Public Records”..........................................................................................................................................3

B. What are “Records”?........................................................................................................... 4 1. 2. 3. 4.

Statutory Definition - R.C. 149.011(G) .........................................................................................................4 Records and Non-Records..............................................................................................................................4 The Effect of “Actual Use” ............................................................................................................................5 “Is This Item a Record?” - Some Common Applications .........................................................................6

C. What is a “Public Record” .................................................................................................. 7 Statutory Definition - R.C. 149.43(A)(1).................................................................................................................7 What “Kept By” Means ............................................................................................................................................8

D. Exceptions .......................................................................................................................... 8

II.

Chapter Two: Requesting Public Records ...................................................................9

A. Rights and Obligations of a Public Records Requester ..................................................... 9 1. 2. 3. 4. 5. 6.

“Any Person” May Make a Request...............................................................................................................9 Proper Request for Specific, Existing Records ............................................................................................9 Unless a Specific Law Provides Otherwise, Requests can be for any Purpose, and Need not Identify the Requestor or be Made in Writing..........................................................................10 Requester Choices of Media on Which Copies are Made.........................................................................10 Requester Choices of Delivery or Transmission of Copies......................................................................11 Other Rights and Obligations of Requesters..............................................................................................11

B. Rights and Obligations of a Public Office......................................................................... 11 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Organization and Maintenance of Public Records ....................................................................................11 Request Must be for Specific, Existing Records ........................................................................................12 Prompt Inspection, or Copies Within a Reasonable Period of Time......................................................12 Inspection at No Cost During Regular Business Hours...........................................................................13 Copies and Delivery or Transmission, “At Cost” .....................................................................................13 Clarifying the Request....................................................................................................................................14 Duty to Withhold Certain Records..............................................................................................................16 Option to Withhold or Release Certain Records .......................................................................................16 No Duty to Release Non-Records...............................................................................................................16 Denial of a Request, Redaction, & Public Offices’ Duty of Notice........................................................16 Burden or Expense of Compliance..............................................................................................................18 Other Rights and Obligations of Public Offices........................................................................................18

C. Statutes That Modify General Rights and Duties..............................................................18 1. 2. 3. 4.

Particular Records ..........................................................................................................................................18 Particular Public Offices................................................................................................................................19 Particular Requesters or Purposes................................................................................................................19

Modified Records Access by Certain Requesters ........................................................................ 19 a.

Prison inmates....................................................................................................................................19

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Ohio Sunshine Laws 2011 b. c.

5.

III.

Commercial Requesters ....................................................................................................................20 Journalists ...........................................................................................................................................20

Modified Access to Certain Public Offices’ Records................................................................. 23

a. Bulk Commercial Requests from Ohio Bureau of Motor Vehicles ...........................................23 b. Copies of Coroner's Records……………………………………………………………....23

Chapter Three: Exceptions to the Required Release of Public Records .................... 24 A. Categories of Exceptions .................................................................................................. 24 1. 2.

B. C. D. E. F.

“Must Not Release” .......................................................................................................................................24 “May Release, But May Choose to Withhold” ...........................................................................................24

Multiple and Mixed Exceptions ....................................................................................... 25 Waiver of an Exception ..................................................................................................... 25 Applying Exceptions......................................................................................................... 25 Exceptions Enumerated in the Public Records Act ......................................................... 26 Exceptions Affecting Personal Privacy ............................................................................. 30 1. 2. 3.

Constitutional Right to Privacy ....................................................................................................................30 Personal Information Listed Online............................................................................................................31 Ohio Personal Information Systems Act (PISA) ......................................................................................32

G. Exceptions Created by Other Laws (by Topic) ................................................................ 34 1.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

IV.

Attorney-Client Privilege, Discovery, and Other Litigation Items ..........................................................34 a. Attorney-Client Privilege..................................................................................................................34 b. Criminal Discovery............................................................................................................................35 c. Civil Discovery...................................................................................................................................35 d. Prosecutor and Government Attorney Files (Trial Preparation and Work Product) ..............36 e. Settlement Agreements and Other Contracts................................................................................36 Municipal Income Tax Returns ...................................................................................................................37 Trade Secrets...................................................................................................................................................37 Juvenile Records .............................................................................................................................................38 Social Security Numbers................................................................................................................................39 Student Records..............................................................................................................................................40 Infrastructure & Security Records................................................................................................................41 a. Infrastructure Records......................................................................................................................41 b. Security Records ................................................................................................................................41 Contractual Confidentiality ...........................................................................................................................42 Protective Orders & Sealed/Expunged Court Records ...........................................................................42 Grand Jury Records .......................................................................................................................................42 Copyright Prohibitions to Disclosure..........................................................................................................43 EMS Run Sheets.............................................................................................................................................43 FOIA Does Not Apply to Ohio Public Offices ........................................................................................43 Driver’s Privacy Protection...........................................................................................................................44

Chapter Four: Enforcement and Liabilities ................................................................ 45 A. Public Records Act Statutory Remedies ........................................................................... 45 1. 2. 3. 4.

Parties...............................................................................................................................................................45 Where to File...................................................................................................................................................45 When to File....................................................................................................................................................45 Requirements to Prevail ................................................................................................................................45

B. Liabilities of the Public Office .......................................................................................... 46 1. 2. 3. 4. 5.

Attorney Fees..................................................................................................................................................46 Amount of Fees..............................................................................................................................................47 Statutory Damages .........................................................................................................................................47 Recovery of Deleted E-mail Records ..........................................................................................................47 Reduction of Attorney Fees and Civil Penalty ...........................................................................................48

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Ohio Sunshine Laws 2011 V.

Chapter Five: Other Obligations of a Public Office.................................................... 49 A. Records Management ....................................................................................................... 49 1. 2. 3. 4.

Records Management Programs...................................................................................................................50 Records Retention and Disposition.............................................................................................................51 Liability for Unauthorized Destruction of Records...................................................................................52 Availability of Records Retention Schedules ..............................................................................................53

B. Records Retention - Practical Pointers ............................................................................. 53 1. 2.

Fundamentals..................................................................................................................................................53 Managing Records in Five Easy Steps:........................................................................................................53 a. Conduct a Records Inventory..........................................................................................................53 b. Categorize Records by Record Series .............................................................................................53 c. Decide How Long Each Records Series should be Kept ............................................................54 d. Dispose of Records on Schedule ....................................................................................................54 e. Review Schedules Regularly and Revise, Delete, or Create New Ones as the Law and the Office’s Operations Change ...............................................................................54

C. In Summary: Practical Pointers for Public Offices ........................................................... 54 D. Helpful Resources for Local Government Offices............................................................ 55 E. Helpful Resources for State Government Offices............................................................. 55 1. 2.

Ohio Department of Administrative Services Records Management Program.....................................55 The Ohio Historical Society, State Archives ..............................................................................................56 F. Helpful Resources for All Government Offices ................................................................. 56

G. Public Records Policy ....................................................................................................... 56 H. Required Public Records Training for Elected Officials.................................................. 57

VI.

Chapter Six: Special Topics.......................................................................................... 58 A. CLEIRs: Confidential Law Enforcement Investigatory Records Exception .......................................................................................................................... 58 1. 2.

CLEIRs Defined.............................................................................................................................................58 Determining whether the CLEIRs Exception Applies .............................................................................58

B. Employment Records ...................................................................................................... 64 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Non-Records...................................................................................................................................................64 Names and Dates of Birth of Public Officials and Employees ...............................................................64 Resumes and Application Materials.............................................................................................................65 Background Investigations............................................................................................................................65 Evaluations and Disciplinary Records.........................................................................................................66 Physical Fitness, Psychiatric, and Polygraph Examinations .....................................................................66 Medical Records .............................................................................................................................................66 School Records ...............................................................................................................................................67 Social Security Numbers and Taxpayer Records........................................................................................67 Residential and Familial Information of Listed Safety Officers...............................................................67 Bargaining Agreement Provisions................................................................................................................67 Statutes Specific to a Particular Agency’s Employees ...............................................................................68

C. Residential and Familial Information of Covered Professions that are not Public Records .................................................................................................................. 69 D. Court Records ....................................................................................................................71 1. 2. 3. 4. 5.

Courts’ Supervisory Power Over Their Own Records..............................................................................71 Rules of Court Procedure..............................................................................................................................71 Sealing Statutes ...............................................................................................................................................71 Non-Records...................................................................................................................................................72 General Court Records Retention................................................................................................................72

E. HIPAA & HITECH.......................................................................................................... 74 1.

HIPAA Definitions........................................................................................................................................74

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Ohio Sunshine Laws 2011 2. 3. 4. 5. 6. 7.

HIPAA Does Not Apply Where Ohio Public Records Act Requires Release ......................................74 PHI in Personnel Files...................................................................................................................................75 PHI in Law Enforcement Investigations ....................................................................................................75 PHI in Dispatch Calls ....................................................................................................................................75 PHI Disclosure for Health Care Operations..............................................................................................76 PHI in Directory Information ......................................................................................................................76

Overview of the Ohio Open Meetings Act .................................................................................................77

I.

Chapter One: “Public Body” and “Meeting” Defined................................................ 78

A. “Public Body” ................................................................................................................... 78 1. 2. 3. 4.

Statutory Definition –R.C. 121.22 (B)(1) ....................................................................................................78 Identifying Public Bodies ..............................................................................................................................78 Close-up - Applying the Definition of “public body”...............................................................................79 When the Open Meetings Act Applies to Private Bodies ........................................................................80

B. Entities to Which the Open Meetings Act Does Not Apply............................................. 80 1. 2.

Public Bodies that are NEVER Subject to the Open Meetings Act .......................................................80 Public Bodies that are SOMETIMES Subject to the Open Meetings Act.............................................80

C. “Meeting” ..........................................................................................................................81 1. 2.

II.

Definition ........................................................................................................................................................81 Close-up: Applying the Definition of “Meeting”.......................................................................................83

Chapter Two: Duties of a Public Body........................................................................ 85

A. Openness........................................................................................................................... 85 1. 2. 3. 4. 5.

Where Meetings May be Held ......................................................................................................................85 Method of Voting...........................................................................................................................................85 Right to be Heard...........................................................................................................................................86 Audio and Video Recording .........................................................................................................................86 Executive Sessions .........................................................................................................................................86

B. Notice................................................................................................................................ 86 1. 2. 3.

Types of Meetings ..........................................................................................................................................86 Rules Requirement .........................................................................................................................................87 Notice by Publication ....................................................................................................................................88

C. Minutes ............................................................................................................................. 88 1. 2. 3.

Content of Minutes ........................................................................................................................................88 Making Minutes Available.............................................................................................................................88 Medium on Which Minutes are Kept..........................................................................................................88

D. Modified Duties of Public Bodies Under Special Circumstances .................................... 89 1. 2.

III.

Declared Emergency......................................................................................................................................89 Municipal Charters.........................................................................................................................................89

Chapter Three: Executive Session............................................................................... 90

A. General Principles ............................................................................................................. 90 B. Permissible Discussion Topics..........................................................................................91 1. 2. 3. 4. 5. 6. 7. 8.

Certain Personnel Matters.............................................................................................................................91 The Purchase of Property .............................................................................................................................91 Pending or Imminent Litigation...................................................................................................................92 Collective Bargaining Matters .......................................................................................................................92 Matters Required to be Kept Confidential..................................................................................................92 Security Matters ..............................................................................................................................................92 Hospital Trade Secrets...................................................................................................................................92 Veterans Service Commission Applications ...............................................................................................92

C. Proper Procedures for Executive Session ......................................................................... 93 1.

The Motion .....................................................................................................................................................93

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Ohio Sunshine Laws 2011 2.

IV.

The Roll Call Vote..........................................................................................................................................93

Chapter Four: Enforcement & Remedies.................................................................... 94

A. Enforcement...................................................................................................................... 94 1. 2.

Injunction ........................................................................................................................................................94 Mandamus .......................................................................................................................................................95

B. Remedies........................................................................................................................... 96 1. 2. 3.

Invalidity ..........................................................................................................................................................96 Mandatory Civil Forfeiture............................................................................................................................96 Court Costs and Attorney Fees ....................................................................................................................97

Appendices A.

Statutes ....................................................................................................................A1-45

B.

Statutory Exceptions...............................................................................................B1-27

C.

Ohio Attorney General Opinions: Public Record Act ............................................C1-16

D.

Ohio Attorney General Opinions: Open Meetings Act ........................................... D1-5

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Ohio Sunshine Laws: Chapter Summaries

Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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Ohio Public Records Act Summary Ohio Public Records Act Summary The Ohio Public Records Act is built on centuries of American legal tradition that the records of government are “the people’s records.” The Public Records Act provides the public with procedures to request records from any public office in Ohio, while protecting certain types of records from release. It also establishes a legal process to enforce compliance when a requester feels that a public office has failed to satisfy its obligations under R.C. 149.43(B).

Who can make a request for public records? Any person can make a request for public records by simply asking a public office or person responsible for the public records. Usually, the request can be made in any manner the requester chooses: by phone, in person, or in an e-mail or letter. The requester cannot be required to identify him- or herself, or to explain why the records are being requested unless a specific law requires it. Often, however, a voluntary discussion about the requester’s purposes or interest in seeking certain information can aid the public office in locating and producing the desired records.

What does a public office have to do when a request is received? A public office must organize and maintain its public records to meet its duty to respond to public records requests, and must keep a copy of its records retention schedule at a location readily available to the public. When a public office receives a proper public records request for specific, existing records, the public office must provide prompt inspection of the requested records (during regular business hours) or provide copies within a reasonable period of time. A requester is entitled to delivery of copies by any available means of delivery or transmission the requester selects at the actual cost of packaging and delivery. The public office may withhold or redact specific records that are covered by an exception to the Public Records Act, but is required to give the requester an explanation for any part of a record withheld, including the legal authority that requires or permits that withholding. In addition to denials based on an exception, a public office may deny a request in the extreme circumstance where compliance would unreasonably interfere with the discharge of the office’s duties. A request can also be refused if the office no longer keeps the records, if the request is for items that are not records of the office, if the requester does not revise an ambiguous or overly broad request, or if the requester refuses to pay the cost of requested copies.

To whom does the Public Records Act apply? The rights and duties set out in the Act apply only to a “public office or person responsible for public records,” which includes governmental subdivisions, private entities which are the “substantial equivalent” of public institutions, and other “persons responsible for public records.” The Act usually does not apply to purely private corporations or other organizations, and is also different from the federal Freedom of Information Act (FOIA), which applies only to federal governmental agencies.

What makes a “record” a “public record”? While the right to access records under the Ohio Public Records Act applies to all records kept by an Ohio public office, the terms “records” and “public records” do not include every document or item found in a public office - only those that actually document the policies, operations, and other activities of the office. So, for example, the home addresses of office employees, supply catalogues, and purely personal communications may not be “records” of a public office.

Does a public office have to work with the requester to find public records? If a requester makes an ambiguous or overly broad request that the public office denies, the Public Records Act provides for negotiation to help identify, locate, and deliver the requested records. Unless a specific law says otherwise, a requester does not have to give the reason for wanting the records or their name. In addition, a requester does not have to make a request in writing, but the request does have to Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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Ohio Public Records Act Summary be clear and specific enough for the public office to reasonably identify what public records are being requested.

Can some public records be withheld from a requester? The General Assembly has passed a number of laws that protect certain records by either requiring or permitting a public office to withhold them from public release. Where a public office uses one of these “exceptions,” the office may only withhold a record or part of a record clearly covered by the exception, and must tell the requester what legal authority it is relying on to withhold the record. If only part of a page, audiotape, or image is protected by an exception, then the public office must redact (obscure or delete) only that part of the record, and provide the remainder of the record to the requester. The General Assembly, through legislation, can change the preceding rights and duties for any particular records, for particular public offices, for particular requesters, or in specific situations. In other words, the general rules of public records law may be modified in a variety and combination of ways. In applying the Public Records Act, the courts interpret the Act and any claimed exceptions in favor of disclosure.

What can a person do if they are not given public records? If a person believes they were wrongly denied disclosure of a public record that they requested, they can file a lawsuit, called a mandamus action, against the public office. The burden will be on the office to show the court that any record that it withheld was clearly protected by one or more valid exceptions under the law. If the public office cannot make this showing, it will be ordered to provide the record, and may be subject to a civil penalty and payment of attorney fees. The Public Records Act is a “self-help” statute, meaning that a person who believes the Act has been violated must independently pursue a remedy, rather than asking a public official such as the Ohio Attorney General to initiate the legal action on his or her behalf.

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Ohio Open Meetings Act Summary Ohio Open Meetings Act Summary The Open Meetings Act requires public bodies in Ohio to conduct all public business in open meetings that the public may attend and observe. This means that if a public body is meeting to discuss and decide public business, the meeting must be open to the public.

What is a public body? Public bodies are decision-making groups of state or local government agencies or institutions. Examples of these bodies include school boards, city councils, and boards of trustees. However, the Open Meetings Act does not apply to some public bodies, such as the Ohio General Assembly and grand juries.

What is a meeting? In order for the Open Meetings Act to apply, the members of a public body must be meeting to discuss the public’s business. A meeting is a prearranged gathering of a majority of the members of a public body for the purpose of discussing public business. So, for example, if there are five members of a school board, and only two get together to discuss public business, this is not a meeting and the Open Meetings Act would not require it to be open to the public. However, if three members gather to discuss public business, this is a meeting and the Open Meetings Act would require it to be open to the public. Also, if there is a meeting, the public body must give prior public notice.

What kind of notice should be given to the public? Public bodies must notify the public when and where each meeting will take place, and must sometimes say what will be discussed. Also, every public body must establish, by rule, a reasonable method for notifying the public in advance of meetings. There are three types of meetings, each requiring different types of notice. “Regular meetings” are held at regular intervals, such as once a month. The notice required for this type of meeting includes letting the public know the time and place of the meeting. A “special meeting” is any meeting other than a regular meeting. Public notice must be given of the time, place, and purpose of the special meeting. At least 24 hours notice must be given, and only topics related to the stated purpose of the meeting can be discussed. “Emergency meetings” are special meetings that are needed because a situation requires immediate action. The public body must immediately notify certain media outlets and individuals of the time, place, and purpose of the emergency meeting. Like all other special meetings, only topics related to the stated purpose of the meeting can be discussed.

Must minutes be taken of all public meetings? A public body must keep full and accurate minutes of its meetings, but those minutes do not have to be an exact transcript of every word said. Minutes must be promptly prepared, filed, and made available for public inspection.

What are executive sessions and when are they permitted? Closed-door sessions, or executive sessions, are started when a member makes a motion and the members of the public body vote to go into closed session. These sessions are attended by only the members of the public body and persons they invite. Executive sessions may be held for only a few specific purposes, and no vote or other decision on the matter(s) discussed may take place during the executive session.

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Ohio Open Meetings Act Summary What can be done if there are violations of the Open Meetings Act? If any person believes that a public body has violated the Open Meetings Act, that person may file an injunctive action in the common pleas court to compel the public body to obey the Act. If an injunction is issued, the public body must correct its actions and pay court costs, a fine of $500, and reasonable attorney fees, subject to possible reduction by the court. If the court does not issue an injunction, and the court finds that the lawsuit was frivolous, it may order the person who filed the suit to pay the public body’s court costs and reasonable attorney fees. If someone is seeking access to a public body’s minutes, and the body is not turning them over, that person can file a mandamus action under the Public Records Act to force the creation of, or access to, meeting minutes. A mandamus action can also be used to order a public body to give notice of meetings to the person filing the action. An action taken by a public body while that body is in violation of the Open Meetings Act may be invalid. A member of the public body who violates an injunction imposed for a violation of the Open Meetings Act may be subject to a court action removing that official from office.

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The Ohio Public Records Act Overview of the Ohio Public Records Act Ohio law has long provided for public scrutiny of state and local government records. 1 Ohio’s Public Records Act details how to request public records. The Act also excludes some records from disclosure and enforces production when a proper public records request is denied. The pages that follow will explain the details of this process; below is an overview of the basic principles. Any person may request to inspect or obtain copies of public records from a public office that keeps those records. A public office must organize and maintain its public records in a manner that meets its duty to respond to public records requests, and must keep a copy of its records retention schedule at a location readily available to the public. When it receives a proper public records request, and unless part or all of a record is exempt from release, a public office must provide inspection of the requested records promptly and at no cost, or provide copies at cost within a reasonable period of time. Unless a specific law says otherwise, a requester does not have to give the reason for wanting the records, or give his or her name, or make the request in writing. However, the request does have to be clear and specific enough for the public office to reasonably identify what public records are being requested. A request can be refused if the office no longer keeps the records, if the request is for documents that are not records of the office, or if the requester does not revise an ambiguous or overly broad request. The General Assembly has passed a number of laws that protect certain records by either requiring or permitting a public office to withhold them from public release. Where a public office invokes one of these exceptions, the office may only withhold a record or part of a record clearly covered by the exception, and must tell the requester what legal authority it is relying on to withhold the record. A person who believes he or she was wrongly denied a public record may file a lawsuit against the public office, and the burden will be on the office to show the court that any record it withheld was clearly subject to one or more valid exceptions. If it cannot, the public office will be ordered to provide the record, and may be subject to a civil penalty and payment of attorney fees.

1

Ohio’s state and local government offices follow Ohio’s Public Records Act, found at R.C. 149.43. The federal Freedom of Information Act, 5 U.S.C. § 552, does not apply to state and local offices. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter One: Public Records Defined I. Chapter One: Public Records Defined The Ohio Public Records Act applies only to “public records,” which the Act defines as “records kept by a public office.” 2 When making or responding to a public records request, it is important to first establish whether the items sought are really “records,” and if so, whether they are currently being “kept by” an organization that meets the definition of a “public office.” This chapter will review the definitions of each of these key terms and how they have been applied by Ohio courts. One of the ways that the Ohio General Assembly removes certain records from the operation of the Ohio Public Records Act is to simply remove them from the definition of “public record.” These exceptions and other ways in which exceptions to the Act are created are addressed in Chapter Three.

A. What is a “Public Office”? 1. Statutory Definition - R.C. 149.011(A) “Public office” includes any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government. This definition includes all state and local government offices, but also many agencies not directly operated by a political subdivision. Examples of entities that have been determined to be “public offices” (prior to the Oriana House 3 decision) include:  Some public hospitals; 4  Community action agencies; 5  Private non-profit water corporations supported by public money; 6  Private non-profit PASSPORT administrative agencies; 7  Private equity funds that receive public money; 8  Non-profit corporations that receive and solicit gifts for a public university and receive support from taxation; 9  Private non-profit county ombudsman offices; 10 and  County emergency medical services organizations. 11

2. Private Entities Can Be “Public Offices” If there is clear and convincing evidence that a private entity is the functional equivalent of a public office, that entity will be subject to the Ohio Public Records Act. Under the functional equivalency 2

R.C. 149.43(A)(1) State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854. Similar entities today should be evaluated based on current law. 4 State ex rel. Dist. 1199 v. Lawrence County Gen. Hosp, 83 Ohio St.3d 351, 1998-Ohio-49; but compare, State ex rel. Stys v. Parma Community General Hosp., 93 Ohio St.3d 438, 2001-Ohio-1582 (hospital deemed not a “public office”); State ex rel. Farley v. McIntosh (2nd Dist. 1998), 134 Ohio App.3d 531 (court appointed psychologist not “public office”). 5 State ex rel. Toledo Blade Co. v. Economic Opportunity Planning Association (C.P. 1990), 61 Ohio Misc.2d 631. 6 Sabo v. Hollister Water Association (Jan. 12, 1994), 4th Dist. App. No. 93 CA 1582, unreported. 7 1995 Ohio Op. Att’y Gen. No. 001. 8 State ex rel. Toledo Blade Co. v. Ohio Bureau of Workers Compensation, 106 Ohio St.3d 113, 2005-Ohio-3549 (limited-liability companies organized to receive state-agency contributions were public offices for purposes of the Public Records Act). 9 State ex rel. Toledo Blade Co. v. University of Toledo Foundation (1992), 65 Ohio St.3d 258. 10 State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 1997-Ohio-349. 11 1999 Ohio Op. Att’y Gen. No. 006. 3

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The Ohio Public Records Act Chapter One: Public Records Defined test, the court must analyze all pertinent factors, including: (1) whether the entity performs a governmental function, (2) the level of government funding, (3) the extent of government involvement or regulation, and (4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.” 12 The functional equivalency test “is best suited to the overriding purpose of the Public Records Act, which is ‘to allow public scrutiny of public offices, not of all entities that receive funds that at one time were controlled by the government.’” 13 In general, the more a private entity is funded, controlled, regulated and/or created by government, and the greater the extent that the entity is performing a governmental function, the more likely it is the private entity will be found to be a “public institution” and therefore a “public office” subject to the Ohio Public Records Act.

3. A Private Entity, Even if not a “Public Office,” Can Be “A Person Responsible for Public Records” When a public office contracts with a private entity to perform government work, the resulting records may be public records, even if they are solely in the possession of the private entity. 14 Resulting records are public records when three conditions are met: (1) the private entity prepared the records to perform responsibilities normally belonging to the public office, (2) the public office is able to monitor the private entity’s performance, and (3) the public office may access the records itself. 15 Under these circumstances, the public office is subject to requests for these public records under its jurisdiction, and the private entity itself may have become a “person 16 responsible for public records” 17 for purposes of the Ohio Public Records Act. 18 For example, a public office’s obligation to turn over application materials and resumes extends to records of private search firms the public office used in the hiring process. 19 Even where the public office does not have control over or access to such records, the records may still be deemed public. 20 A public office cannot avoid its responsibility for public records by transferring custody of records or the record-making function to a private entity. 21 However, a public office may not be responsible for records of a private entity that performs related functions that are not activities of the public office, 22 and a person who works in a

12

State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854 (paragraphs one and two of syllabus); see also, State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St.3d 338, 2006-Ohio-6713. 13 State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St.3d 338, 2006-Ohio-6713, at ¶24; State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, at ¶36 (“It ought to be difficult for someone to compel a private entity to adhere to the dictates of the Public Records Act, which was designed by the General Assembly to allow public scrutiny of public offices, not of all entities that receive funds that at one time were controlled by the government.”). 14 State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 660, 2001-Ohio-1895; State ex rel. Gannett Satellite Info. Network v. Shirey (1996), 76 Ohio St.3d 1224. State ex rel. Bell v. Brooks (10th Dist.), 2010-4266 (A joint self-insurance pool for counties and county governments was not the functional equivalent of a public office). 15 State ex rel. Carr v. City of Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, at ¶36 (firefighter promotional examinations kept by testing contractor); State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 657, 2001-Ohio-1895; State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37 (outcome overturned by subsequent amendment of R.C. 4701.19(B)). 16 “Person” includes an individual, corporation, business trust, estate, trust, partnership, and association. R.C. 1.59(C). 17 State ex rel. Toledo Blade Co. v. Ohio Bureau of Workers’ Comp., 106 Ohio St.3d 113, 2005-Ohio-3549, at ¶20.; R.C. 149.43(C) permits a mandamus action against either “a public office or the person responsible for the public record” to compel compliance with the Public Records Act. This provision manifests an intent to afford access to public records, even when a private entity is responsible for the records; State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 658, 2001-Ohio-1895. 18 E.g., R.C. 149.43(B)(1)-(9),(C)(1),(C)(2) . 19 State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 1997-Ohio-206; for additional discussion, see Chapter Six: B. Application to Employment Records. 20 State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 402-03, 1997-Ohio-206 (no proof of public office’s ability to access search firm’s records or monitor performance, but resumes were held to be public records). 21 State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 659, 2001-Ohio-1895; State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 403, 1997-Ohio-206 (1997). 22 State ex rel. Rittner v. Foley, 6th Dist. No. L-08-1328, 2009-Ohio-520 (public school system not responsible for records kept by private alumni association). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter One: Public Records Defined governmental subdivision and discusses a request is not thereby a “person responsible” for records outside of their own public office within the governmental subdivision. 23

B. What are “Records”? 1. Statutory Definition - R.C. 149.011(G) The term “Records” includes any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in R.C. 1306.01, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

2. Records and Non-Records If a document or other item does not meet all three parts of the definition of a “record,” then it is a non-record and is not subject to the Ohio Public Records Act or Ohio’s records retention requirements. The next paragraphs explain how items in a public office might meet or fail to meet the three parts of the definition of a record in R.C. 149.011(G).

“Any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code . . .” This first element of the definition of a record focuses on the existence of a recording medium; in other words, something that contains information in fixed form. The physical form of an item does not matter so long as it can record information. A paper or electronic document, e-mail, 24 video, 25 map, blueprint, photograph, voice mail message, or item stored on any other medium could be a record. This element is fairly broad. With the exception of one’s thoughts and unrecorded verbal communication, most public office information is stored on a fixed medium of some sort. A request for unrecorded or not-currently-recorded information (a request for advice, interpretation, referral, or research) 26 made to a public office, rather than a request for a specific existing document, device, or item containing such information, would fail this part of the definition of a “record.” 27 A public office has discretion to determine the form in which it will keep its records. 28

“. . . created, received by, or coming under the jurisdiction of a public office . . .” It is usually clear when items are created or received by a public office. However, even if an item is not in the public office’s physical possession, it may still be considered a “record” of that office. 29 If

23

State ex rel. Keating v. Skeldon, 6th Dist. No. L-08-1414, 2009-Ohio-2052 (assistant prosecutor and county public affairs liaison not “persons responsible” for records of county dog warden). 24 State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶21 (e-mail messages constitute electronic records under R.C.1306.01(G)). 25 State ex rel. Harmon v. Bender (1986), 25 Ohio St.3d 15, 17. 26 State ex rel Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 1998-Ohio-242 (relator requested names and documents of a class of persons who were enrolled in the State Teachers Retirement System but the court determined that that information did not exist in record form); State ex rel. Lanham v. Ohio Adult Parole Auth., 80 Ohio St.3d 425, 427, 1997-Ohio-104 (inmates requested “qualifications of APA members”). 27 State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 154, 1999-Ohio-447 (a public office has “no duty under R.C. 149.43 to create new records by searching for and compiling information from existing records.” Requested records of peremptory strikes during relator’s trial did not exist, and the court had no obligation to create responsive records); Capers v. White (Apr. 17, 2002), 8th Dist No. 80713, unreported (requests for information are not enforceable in a public records mandamus). 28 State ex rel. Recodat Co. v. Buchanan (1989), 46 Ohio St.3d 163, 164. 29 State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 660, 2001-Ohio-1895 (requested stadium cost-overrun records were within jurisdiction of county board and were public records regardless of whether they were in the possession of the county, or the construction companies). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter One: Public Records Defined records are held or created by another entity that is performing a public function for a public office, those records may be “under the public office’s jurisdiction.” 30

“. . . which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.” In addition to obvious non-records such as junk mail and electronic “spam,” some items found in the possession of a public office do not meet the definition of a record because they do not “document the activities of a public office.” 31 It is the message or content, not the medium, that makes a document a record of a public office. 32 The Ohio Supreme Court has noted that “disclosure [of nonrecords] would not help to monitor the conduct of state government.” 33 Some items that have been found not to “document the activities,” etc. of public offices include public employee home addresses kept by the employer solely for administrative (i.e. management) convenience, 34 retired municipal government employee home addresses kept by the municipal retirement system, 35 personal calendars and appointment books, 36 juror contact information and other juror questionnaire responses, 37 contact information of children who use public recreational facilities, 38 and non-record items and information contained in employee personnel files. 39 Similarly, proprietary software needed to access stored records on magnetic tapes or other similar format, which meets the first two parts of the definition, is a means to provide access, and not a record, as it does not itself document the activities, etc. of a public office. 40 Finally, the Attorney General has opined that a piece of physical evidence in the hands of a prosecuting attorney (e.g., a cigarette butt) is not a record of that office. 41

3. The Effect of “Actual Use” An item received by a public office is not a record simply because the public office could use the item to carry out its duties and responsibilities. 42 However, if the public office actually uses the item, it may thereby document the office’s activities and become a record. 43 For example, where a school board invited job applications to be sent to a post office box, any applications received there did not become records of the office subject to a public records request until the board retrieved and reviewed, or otherwise used and relied on them. 44

30

State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 2001-Ohio-1895; State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37, 39 (“we hold that the records [of an independent certified public accountant] are within the auditor’s jurisdiction and that he is subject to a writ of mandamus ordering him to make them available for inspection.”). 31 State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, at ¶25 (citations omitted); State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186, 188 (“To the extent that any item . . . is not a ‘record,’ i.e., does not serve to document the organization, etc., of the public office, it is not a public record and need not be disclosed.”). 32 State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 461. 33 State ex rel. Dispatch v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, at ¶27 (citing State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 369, 2000-Ohio-345 (names, addresses, and other personal information kept by city recreation and parks department regarding children who used city’s recreational facilities are not public records)). 34 Dispatch v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384 (home addresses of employees generally do not document activities of the office, but may in certain circumstances). 35 State ex rel. DeGroot v. Tilsley, Ohio Supreme Court No. 2010-1285, 2011-Ohio-231. 36 International Union, United Auto., Aerospace & Agric. Implement Workers v. Voinovich (1995), 100 Ohio App.3d 372, 378. 37 Akron Beacon Journal Printing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117. 38 State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 369, 2000-Ohio-345. 39 Fant v. Enright (1993), 66 Ohio St.3d 186. 40 State ex rel. Recodat Co. v. Buchanan (1989), 46 Ohio St.3d 163, 165. 41 2007 Ohio Op. Att’y Gen. No. 034. 42 See, State ex rel. Beacon Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 1998-Ohio-180. 43 State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, at ¶27 (judge used redacted information to decide whether to approve settlement); State ex rel. Beacon Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 1998-Ohio-180 (judge read unsolicited letters but did not rely on them in sentencing defendant, therefore, letters did not serve to document any activity of the public office); State ex rel. Sensel v. Leone, 85 Ohio St.3d 152, 1999-Ohio-446 (unsolicited letters alleging inappropriate behavior of coach not “records”); State ex rel. Carr v. Caltrider (May 17, 2001), Franklin C.P. No. 00CVH07-6001, unreported. 44 State ex rel. Cincinnati Enquirer v. Ronan, 2010-Ohio-5680, 127 Ohio St.3d 236. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter One: Public Records Defined 4. “Is This Item a Record?” - Some Common Applications E-mail E-mail messages must be analyzed like any other item to determine if they meet the definition of a record. As electronic documents, all e-mails are items containing information stored on a fixed medium (the first part of the definition). If an e-mail is received, created by, or comes under the jurisdiction of a public office (the second part of the definition), then its status as a record depends on the content of the message. If an e-mail created by, received by, or coming under the jurisdiction of a public office serves to document the organization, functions, etc. of the public office, then it meets the three parts of the definition of a record. 45 If an e-mail does not serve to document the activities of the office, then it does not meet the definition of a record. 46 Although the Ohio Supreme Court has not ruled directly on whether communications of public employees to or from private e-mail accounts that otherwise meet the definition of a record are subject to the Ohio Public Records Act, 47 the issue is analogous to mailing a record from one’s home, versus mailing it from the office - the location from which the item is sent does not change its status as a record. Records transmitted via e-mail, like all other records, must be maintained in accordance with the office’s relevant records retention schedules. 48

Notes Not every piece of paper on which a public officer or employee writes something meets the definition of a record. 49 Personal notes of public officials generally do not constitute public records. 50 Employee notes have been found not to be public records if they are:  kept as personal papers, not official records;  kept for the employee’s own convenience (for example, to help recall events); and  other employees did not use or have access to the notes. 51 Such personal notes do not meet the third part of the definition of a record because they do not document the organization, functions, etc. of the public office. The Ohio Supreme Court has held in several cases that, in the context of a public court hearing or administrative proceeding, personal notes that meet the above criteria need not be retained as records because no information will be lost

45

State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253 (public office e-mail can constitute public records under R.C. 149.011(G) and 149.43 if it documents the organization, policies, decisions, procedures, operations, or other activities of the public office). 46 State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept. (1998), 82 Ohio St.3d 37 (When an e-mail message does not serve to document the organization, functions, policies, procedures, or other activities of the public office, it is not a “record,” even if it was created by public employees on a public office’s e-mail system). 47 State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶23 (relator conceded that that e-mail messages created or received by her in her capacity as state representative that document her work-related activities constitute records subject to disclosure under R.C. 149.43 regardless of whether it was her public or her private e-mail account that received or sent the e-mail messages). 48 State, ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶21 fn. 1 (“Our decision in no way restricts a public office from disposing of items, including transient and other documents (e.g., e-mail messages) that are no longer of administrative value and are not otherwise required to be kept, in accordance with the office’s properly adopted policy for records retention and disposal. See, R.C. 149.351. Nor does our decision suggest that the Public Records Act prohibits a public office from determining the period of time after which its e-mail messages can be routinely deleted as part of the duly adopted records-retention policy.”). 49 International Union, United Auto., Aerospace & Agric. Implement Workers v. Voinovich (1995), 100 Ohio App.3d 372, 376 (governor’s logs, journals, calendars, and appointment books not “records”). 50 State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, at ¶22 (notes taken during public employee’s pre-disciplinary conference not “records”). 51 State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, at ¶¶9-23; State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 440, 1993Ohio-32. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter One: Public Records Defined to the public. 52 However, if any one of these factors does not apply (for instance if the notes are circulated as a draft), then the notes are likely to be considered a record.

Drafts If a draft document kept by a public office meets the defining criteria of a record, it is subject to both the Public Records Act and records retention law. 53 For example, a written draft of an oral collective bargaining agreement submitted to city council for its approval was found to document the city’s version of the oral agreement and therefore met the definition of a record. 54 A public office may address the length of time for which drafts must be kept in its records retention schedules. 55 The cases finding drafts to be records involve the sharing of the document with others, implying that an unfinished draft document held solely by one individual may constitute only personal notes that do not yet document the activities of the office. 56

Computerized Database Contents A database is an organized collection of related data. A public office is not required to search a database for information and compile or summarize to create new records. 57 However, if a computer program being used by the public office can perform the search and produce the compilation or summary described by the requester, that output is deemed to already “exist” as a record for the purposes of the Ohio Public Records Act. 58 Where the public office would have to reprogram its computer system to produce the requested output, it is deemed not to be an existing record of the office. 59

C. What is a “Public Record” Statutory Definition - R.C. 149.43(A)(1): “Public record” means records kept by any public office 60 This short definition joins the previously detailed definitions of “records” and “public office,” with the words “kept by.”

52

Personal notes, if not physically “kept by” the public office, would also not fit that defining requirement of a “public record.” For additional discussion see, Chapter One: E. Public Record. 53 Kish v. City of Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, at ¶20 (2006) (“document need not be in final form to meet the statutory definition of ‘record’”); State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, at ¶20 (2002) (“even if a record is not in final form, it may still constitute a ‘record’ for purposes of R.C. 149.43 if it documents the organization, policies, functions, decisions, procedures, operations, or other activities of a public office.”); see also, State ex rel. Wadd v. City of Cleveland (1998), 81 Ohio St.3d 50, 53, 1998-Ohio-444 (granting access to preliminary, unnumbered accident reports not yet processed into final form); State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170 (granting access to preliminary work product that had not reached its final stage or official destination). 54 State ex rel. Calvary v. City of Upper Arlington (2000), 89 Ohio St.3d 229, 2000-Ohio-142. 55 For additional discussion, see Chapter Six: E. Records Retention - Practical Pointers. 56 State ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU v. Gulyassy (1995), 107 Ohio App.3d 729, 733. 57 State ex rel. White v. Goldsberry (1999), 85 Ohio St. 3d 153, 154, 1999-Ohio-447 (citing State ex rel Kerner v. State Teachers Retirement Bd. (1998), 82 Ohio St.3d 273, 1998-Ohio-242). See also, Margolius v. City of Cleveland (1992), 62 Ohio St.3d 456, 461. 58 State ex rel. Scanlon v. Deters (1989), 45 Ohio St.3d 376, 379 (overruled on different grounds). 59 State ex rel. Kerner v. State Teachers Retirement Bd. (1998), 82 Ohio St.3d 273, 275, 1998-Ohio-242 (relator requested names and addresses of a described class of members in the STRS - the court found the agency would have had to reprogram its computers to create the requested records). 60 The definition goes on to expressly include specific entities, by title, as ‘public offices’, and specific records as ‘public records’, as follows: “. . . including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in this state kept by the nonprofit or for-profit entity operating the alternative school pursuant to section 3313.533 of the Revised Code.” R.C. 149.43(A)(1).

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The Ohio Public Records Act Chapter One: Public Records Defined What “Kept By” Means A record is only a public record if it is “kept by” 61 a public office. 62 Records that do not yet exist – future minutes of a meeting that has not yet taken place – are not records, much less public records, until actually in existence and “kept” by the public office. Similarly, if the office kept a record in the past, but has properly disposed of the record and no longer keeps it, then it is no longer a public record of that office. 63 For example, where a school board first received and then returned superintendent candidates’ application materials to the applicants, those materials were no longer “public records” responsive to a newspaper’s request. 64 But “so long as a public record is kept by a government agency, it can never lose its status as a public record.” 65

D. Exceptions Both within the Ohio Public Records Act, and in separate statutes throughout the Ohio Revised Code, the General Assembly has identified items and information that are either removed from the definition of public record, or otherwise required or permitted to be withheld. 66 (See, Chapter Three: Exceptions to the Required Release of Public Records, for definitions, application, and examples of exceptions to the Public Records Act).

61

Prior to July, 1985, the statute read, “records required to be kept by any public office,” which was a very different requirement, and which no longer applies to the Ohio definition of “public record.” State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 173. 62 State ex rel. Hubbard v. Fuerst, 8th Dist. No. 94799, 2010-Ohio-2489 (A writ of mandamus will not issue to compel a custodian of public records to furnish records which are not in his possession or control.). 63 State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs (2008), 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶21. 64 See, State ex rel. Cincinnati Enquirer v. Cincinnati Bd. of Educ., 99 Ohio St.3d 6, 2003-Ohio-2260, at ¶12 (materials related to superintendent search were not “public records” where neither board nor search agency kept such materials); see also, State ex rel. Johnson v. Oberlin City School Dist. Bd. of Educ., 2009-Ohio-3526 (individual evaluations, used by board president to prepare a composite evaluation but not kept thereafter, were not “public records”). 65 State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶20 (quoting State ex rel. Dispatch Printing Co. v. Columbus (2000), 90 Ohio St.3d 39, 41, 2000-Ohio-8. 66 R.C. 149.43(A)(1)(a-aa) (records, information, and other items that the General Assembly has determined are not public records or otherwise excepted). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Two: Requesting Public Records II. Chapter Two: Requesting Public Records The Ohio Public Records Act sets out procedures, limits, and requirements designed to maximize requester success in obtaining access to public records and minimize the burden on public offices where possible. When making or responding to a public records request, it is important to be familiar with these procedures, limits and requirements so it is a smooth and cooperative process.

A. Rights and Obligations of a Public Records Requester Any person can make a request for public records by asking a public office or person responsible for public records for specific, existing records. Usually, the request can be made in any manner the requester chooses: by phone, in person, or in an e-mail or letter. The requester may not be required to identify him- or herself, or indicate why the records are being requested unless a specific law requires it. Often, however, a discussion about the requester’s purposes or interest in seeking certain information can aid the public office in locating and producing the desired records more efficiently.

1. “Any Person” May Make a Request The requester need not be an Ohio or United States resident. 67 In fact, in the absence of a law to the contrary, foreign individuals and individuals living in a foreign country are entitled to inspect and copy public records. 68 The requester need not be an individual, but may be a corporation, government agency, or other body. 69

2. Proper Request for Specific, Existing Records A requester must identify the records he or she is seeking “with reasonable clarity.” 70 The request must not be overly broad, and must describe what is being sought “specifically and particularly.” 71 A public office will not be compelled to produce public records when the underlying request is ambiguous or overly broad. 72 For example, a request for “any and all records containing any reference whatsoever” to a particular person is an inappropriate public records request because it fails to identify the particular records sought. 73 (See Chapter Two: B. Rights and Obligations of Public Offices - 6. Clarifying the Request) A requester must also request a record that actually exists at the time of the request, 74 not merely information the requester seeks to obtain. 75 For example, if a person asks a public office for a list of 67

2006 Ohio Op. Att’y Gen. No. 038. 2006 Ohio Op. Att’y Gen. No. 038. 69 R.C. 1.59(C); 1990 Ohio Op. Att’y Gen. No. 050. 70 State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶17 (quoting State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, at ¶29). 71 State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶17; State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 2001-Ohio-193; State ex rel. Zauderer v. Joseph (1989), 62 Ohio App.3d 752; State ex rel. Dehler v. Spatny, 11th Dist. No. 2009-T-0075, 2010-Ohio-3052, aff’d, 2010Ohio-5711. 72 R.C. 149.43(B)(2); State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶19. 73 State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 2001-Ohio-193. 74 State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶23 (“. . . in cases in which public records . . . are properly disposed of in accordance with a duly adopted records-retention policy, there is no entitlement to these records under the Public Records Act.”); State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 154, 1999-Ohio-447 (a public office has “no duty under R.C. 149.43 to create new records by searching for and compiling information from existing records.”). State ex rel. Cioffi v. Stuard (11th Dist.), 2010-Ohio-829 (There was no violation of the Public Records Act when a Clerk of Courts failed to provide a hearing transcript that had never been created.). 75 See, Capers v. White (April 17, 2002), 8th Dist No. 80713, unreported (requests for information are not enforceable in a public records mandamus); State ex rel. Evans v. City of Parma, 8th Dist No. 81236, 2003-Ohio-1159 (request for service calls from geographic area improper request); State ex rel. Fant v. Tober (April 28, 1993), 8th Dist No. 63737 (office had no duty to seek out records which would contain information of interest to requester), affirmed by Ohio Sup. Ct. w/o opinion at 68 Ohio St.3d 117; see also, State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 1994-Ohio-261; State ex rel. Rittner v. Fulton County (6th Dist.), 2010-Ohio-4055 (Improper request where requester sought only information on “how documents might be searched”); Nat’l Fed’n of the Blind of Ohio v. Ohio Rehab. Serv. Comm’n. (10th Dist.), 2010-Ohio-3384 (A request for information as to payments were made and received from state agencies was an improper request); State ex rel. O’Shea & Assoc. Co., LPA v. Cuyahoga Metro. Hous. Auth. (8th Dist.), 2010-Ohio-3416 (A request for meetings that contained certain topics was an improper request for information and the public office was not required to seek out and retrieve those records which contain the information of interest to the requester). 68

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The Ohio Public Records Act Chapter Two: Requesting Public Records cases pending against it, but the office does not keep such a list, the public office is under no duty to create a list to respond to the request. 76 Additionally, there is no duty to provide records that were not in existence at the time of the request, but which later come into existence. 77

3. Unless a Specific Law Provides Otherwise, Requests can be for any Purpose, and Need not Identify the Requestor or be Made in Writing A requester need not make a request for public records in writing, or identify him- or herself when making a request. 78 Requesters are not required to inspect or retrieve the records themselves; they may designate someone to inspect or receive copies of the requested records. 79 In most circumstances, the requester need not specify the reason for the request, 80 nor is there any requirement in the Ohio Public Records Act that a requester use particular wording to make a request. 81 Any requirement by the public office that the requester disclose his or her identity or the intended use of the requested public record constitutes a denial of the request. 82 However, the public office may ask requesters to provide their identity, or the intended use of the records, or make the request in writing, when the public office believes that any of these would help the public office identify, locate, or deliver the requested records. The public office must first let the requesters know that they may decline this option if they wish. 83 (See Chapter Two: B. Rights and Obligations of Public Offices - 6. Clarifying the Request)

4. Requester Choices of Media on Which Copies are Made A requester must specify whether he or she would like to inspect requested records or obtain copies. 84 If copies are requested, the requester has the right to choose the medium (paper, film, electronic file, etc.) upon which he or she would like a record to be duplicated. 85 The requester can choose to have the record: (1) on paper, (2) in the same medium as the public office keeps it 86 , or (3) on any medium upon which the public office or person responsible for the public record determines the record can “reasonably be duplicated as an integral part of the normal operations of the public office….” 87 The public office may charge the requester the actual cost of copies made, and may require payment of copying costs in advance. 88

76

Fant v. Flaherty (1992), 62 Ohio St.3d 426; State ex rel. Fant v. Mengel (1991), 62 Ohio St.3d 197; Pierce v. Dowler (Nov. 1, 1993), 12th Dist. No. CA93-08-024. 77 Starks v. Wheeling Twp. Tr., 5th Dist. Nos. 2008 CA 000037 and 2009 CA 000003, 2009-Ohio-4827. 78 See, R.C. 149.43(B)(5). 79 State ex rel. Sevayega v. Reis, 88 Ohio St.3d 458, 459, 2000-Ohio-383; State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 427 (overruled on other grounds). 80 See, R.C. 149.43 (B)(5); see also, Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, at ¶10 (citing State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186 (“[a] person may inspect and copy a ‘public record’ irrespective of his or her purpose for doing so.”)); State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. Of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, at ¶45 (purpose behind request to “inspect and copy public records is irrelevant.”); 1974 Ohio Op. Att’y Gen. No. 097; but compare, State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 1999-Ohio-264 (police officer’s personal information was properly withheld from a criminal defendant who might use the information for “nefarious ends,” implicating constitutional right of privacy); R.C. 149.43(B)(5) (journalist seeking safety officer personal or residential information must certify disclosure would be in public interest). 81 Franklin County Sheriff’s Dep’t v. State Employment Relations Bd. (1992), 63 Ohio St.3d 498, 504 (“No specific form of request is required by R.C. 149.43.”). 82 R.C. 149.43(B)(4). 83 R.C. 149.43(B)(5). 84 R.C. 149.43 (B); see also, generally, Consumer News Servs., Inc. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2000-Ohio-5311; R.C. 149.43(B)(6)-(7). 85 R.C. 149.43(B)(6); State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 105 Ohio St.3d 172, 2005-Ohio-685, at ¶12-13. 86 Gomez v. Ct. of Common Pleas, 7th Dist. No. 07-NO-341, 2007-Ohio-6433 (Although direct copies could not be made because the original recording device was no longer available, requester is still entitled to copies in available alternative format.). 87 R.C. 149.43(B)(6). 88 R.C. 149.43(B)(1), (B)(6). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Two: Requesting Public Records 5. Requester Choices of Delivery or Transmission of Copies A requester may personally pick up requested copies of public records, or may send a designee. 89 Upon request, a public office must transmit copies of public records via the U.S. mail “or by any other means of delivery or transmission,” at the choice of the requester. 90 The public office may require prepayment of postage or other delivery cost, as well as the cost of supplies used in mailing, delivery, or transmission. 91

6. Other Rights and Obligations of Requesters A requester is entitled to prompt inspection of public records at all reasonable times during the regular business hours of the public office, to receive copies of public records within a reasonable period of time, and to access the public office’s records retention schedules. 92 A requester may be required to revise an ambiguous or overly broad request with the help of the public office, or be offered the choice of giving additional information necessary to identify, locate, or deliver the requested records. Also, remember that almost any general rights, obligations, or procedure in public records law can be changed by the General Assembly for specific types of requesters, records, offices, or situations. 93 (These matters are explained in greater detail under the corresponding Rights and Obligations of a Public Office in the next section.)

B. Rights and Obligations of a Public Office A public office must organize and maintain its records so that records may be made available in response to public requests, and must provide the public access to its records retention schedule. On receiving a public records request for specific, existing records, the public office must provide prompt inspection at no cost during regular business hours, or provide copies at cost within a reasonable period of time. The public office may withhold or redact specific records that are covered by an exception to the Ohio Public Records Act, but is required to give the requester an explanation, including legal authority. If a requester makes an ambiguous or overly broad request, or the public office believes that asking for the request in writing, or the requester’s identity or the intended use of the requested information would enhance the ability of the public office to provide the records, the Ohio Public Records Act provides for negotiation to help identify, locate, and deliver the requested records. In addition to denials justified by exceptions, a public office may deny a request in the extreme circumstance where compliance would unreasonably interfere with the discharge of the office’s duties.

1. Organization and Maintenance of Public Records The Ohio Public Records Act requires public offices to organize and maintain public records “in a manner that they can be made available for inspection or copying” in response to public records requests. 94 The General Assembly has imposed this requirement in order to “facilitate broader access to public records.” 95 A public office is not required to create new records to respond to a public records request, even if it is only a matter of compiling information from existing records. 96

89

State ex rel. Sevayega v. Reis, 88 Ohio St.3d 458, 459, 2000-Ohio-383; State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 427. R.C. 149.43(B)(7). R.C. 149.43(B)(7). 92 R.C. 149.43(B)(1), (2). 93 For additional discussion, see Chapter Two, Section C. “Statutes That Modify General Rights and Duties”. 94 R.C. 149.43(B)(2). State ex rel. Bardwell v. City of Cleveland, 126 Ohio St.3d 195, 2010-Ohio-3267 (city police department did not fail to organize and maintain its public records in a manner available for inspection and copying when it kept pawnbroker reports on 3x5 notecards. While the Court noted that keeping these records on 8 1/2 x11 paper could reduce delays in processing requests, there was no requirement to do so). 95 R.C. 149.43(B)(2). 96 State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 1999-Ohio-447 (1999); State ex rel. Warren v. Warner, 84 Ohio St.3d 432, 1999-Ohio-475 (1999); State ex rel. Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 1998-Ohio-242 (1998); State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept. (1998), 82 Ohio St.3d 37, 42; State ex rel. Fant v. Mengel (1991), 62 Ohio St.3d 197. 90 91

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The Ohio Public Records Act Chapter Two: Requesting Public Records A public office must have a copy of its current records retention schedule at a location readily available to the public. 97 The records retention schedule can also be a valuable tool for the public office to use to show a requester how the records kept by the office are organized and maintained.

2. Request Must be for Specific, Existing Records A public office need not fulfill requests that do not specifically and particularly describe what is being sought. 98 (See the corresponding duty of requesters in subsection A.2. of this Chapter.)

3. Prompt Inspection, or Copies Within a Reasonable Period of Time There is no set, required time period for responding to a public records request. Instead, the requirement to provide “prompt” production of records for inspection, and to make copies available in a “reasonable amount of time,” 99 have both been interpreted by the courts as being “without delay” and “with reasonable speed,” 100 with the reasonableness of the time taken in each case depending on the facts and circumstances of the particular request. 101 These terms do not mean “immediately,” or “without a moment’s delay,” 102 but the courts will find a violation of this requirement when an office cannot show that the time taken was reasonable. 103 The following are factors may contribute to the calculation of what is “prompt” or “reasonable” in a given circumstance: Identification of Responsive Records:  Clarify or revise request; 104 and  Identify records. 105 Location & Retrieval:  Locate records 106 and retrieve from storage location, e.g., file cabinet, branch office, off-site storage facility.

97

R.C. 149.43(B)(2); for additional discussion, see Chapter Five, Section A.. “Records Management”. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788; State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 2001-Ohio-193; State ex rel. Zauderer v. Joseph (10th Dist. 1989), 62 Ohio App.3d 752. 99 R.C. 149.43(B)(1); Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, at ¶10; State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, at ¶35. 100 State ex rel. Office of Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, at ¶16; State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, at ¶37; see also, State ex rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 53, 1998-Ohio-444. 101 State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2010-Ohio-1901 (”Given the broad scope of the records requested, the governor’s office’s decision to review the records before producing them, to determine whether to redact exempt matter, was not unreasonable.”); State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, at ¶44 (delay due to “breadth of the requests and the concerns over the employees’ constitutional right of privacy” was not unreasonable); State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311; State ex rel. Stricker v. Cline (5th Dist.), 2010-Ohio-3592 (provision of records within nine business days was a reasonable period of time to respond to a records request.); State ex rel. Holloman v. Collins (10th Dist.), 2010-Ohio-3034 (Assessing whether there has been a violation of the public records act, the critical time frame is not the number of days between when respondent received the public records request and when relator filed his action. Rather, the relevant time frame is the number of days it took for respondent to properly respond to the relator’s public records request.). 102 State ex rel. Office of Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, at ¶10. 103 State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, at ¶¶33-51 (respondent’s six day delay when providing responsive records was neither prompt nor reasonable ); see also, Wadd v. City of Cleveland, 81 Ohio St.3d 50, 53, 1998-Ohio444 (thirteen to twenty-four day delay to provide access to accident reports was neither prompt nor reasonable); State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 624, 1994-Ohio-5 (police department taking four months to respond to a request for “all incident reports and traffic tickets written in 1992” was neither prompt nor reasonable). 104 R.C. 149.43(B)(2), (5). 105 R.C. 149.43(B)(2), (5). 106 R.C. 149.43(B)(5). 98

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The Ohio Public Records Act Chapter Two: Requesting Public Records Review, Analysis & Redaction:  Examine all materials for possible release; 107  Perform necessary legal review, 108 or consult with knowledgeable parties;  Redact exempt materials; 109 and  Provide explanation and legal authority for all redactions and/or denials. 110 Preparation:  Obtain requester’s choice of medium; 111 and  Make copies. 112 Delivery:  Wait for advance payment of costs; 113 and  Deliver copies, or schedule inspection 114 The Ohio Supreme Court has held that “no pleading of too much expense, or too much time involved, or too much interference with normal duties, can be used by the respondent to evade the public’s right to inspect and obtain a copy of public records within a reasonable time.” 115

4. Inspection at No Cost During Regular Business Hours A public office must make its public records available for inspection at all reasonable times during regular business hours. 116 “Regular business hours” means established business hours. 117 When a public office operates twenty-four hours a day, such as a police department, the office may adopt hours that approximate normal administrative hours during which inspection may be accomplished. 118 Public offices may not charge requesters for inspection of public records. 119

5. Copies and Delivery or Transmission, “At Cost”

120

A public office may charge costs for copies and for delivery or transmission, and may require payment of both costs in advance. 121 “At cost” includes the actual cost of making copies, 122 packaging for delivery, postage, and any other costs of the method of delivery or transmission chosen by the

107

State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2010-Ohio-1901; State ex rel. Office of Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, at ¶17 (“R.C. 149.43(A) envisions an opportunity on the part of the public office to examine records prior to inspection in order to make appropriate redactions of exempt materials.” (quoting State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 623, 1994Ohio-5). 108 State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2010-Ohio-1901. 109 R.C. 149.43(A)(11),(B)(1); see, State ex rel. Office of Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, at ¶17 (clerk of courts was afforded time to redact social security numbers from requested records). 110 R.C. 149.43(B)(3). 111 R.C. 149.43(B)(6). 112 R.C. 149.43(B)(1), (B)(6). 113 R.C. 149.43(B)(6), (B)(7). 114 R.C. 149.43(B)(1). 115 State ex rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 53-54, 1998-Ohio-444. 116 R.C. 149.43(B); State ex rel. Toledo Blade Co v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶37 (“The right of inspection, as opposed to the right to request copies, is not conditioned on the payment of any fee under R.C. 149.43.”). 117 State ex rel. Butler County Bar Ass’n v. Robb (12th Dist. 1990), 62 Ohio App.3d 298. 118 State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 1994-Ohio-5 (allowing records requests during all hours of the entire police department’s operations is unreasonable). 119 State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 624, 1994-Ohio-5. 120 R.C. 149.43(B)(1). 121 R.C. 149.43(B)(6), (B)(7). 122 R.C. 149.43(B)(1) (copies of public records must be made available “at cost”); State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 625, 1994-Ohio-5 (public office cannot charge $5.00 for initial page of copies or for employee labor for responding to public records requests; can only charge “actual cost” of copies). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Two: Requesting Public Records requester. 123 The cost of employee time cannot be included in the cost of copies or delivery. 124 One appellate court has held that a public office may choose to employ the services, and charge the requester the costs of, a private contractor to copy public records so long as the decision to do so is reasonable. 125 When a statute sets the cost of certain records or for certain requesters, the specific takes precedence over the general, 126 and the requester must pay the cost set by the statute. 127 For example, because R.C. 2301.24 requires that parties to a common pleas court action must pay court reporters the compensation rate set by the judges for court transcripts, a requester who is a party to the action may not use R.C. 149.43(B)(1) to obtain copies of the transcript at the actual cost of duplication. 128 However, where a statute sets a fee for certified copies of an otherwise public record, and the requester does not request that the copies be certified, the office may only charge actual cost. 129 There is no obligation to provide free copies to someone who indicates an inability or unwillingness to pay for requested records. 130 The Ohio Public Records Act does not require that a public office allow those seeking a copy of the public record to make copies with their own equipment, 131 nor does it prohibit the public office from allowing this.

6. Clarifying the Request A public office must interpret the Ohio Public Records Act broadly in favor of disclosure. However, a requester must first describe the records he or she seeks with reasonable clarity so that the public office can identify responsive records based on the manner in which it ordinarily and accesses the public records it keeps. 132 A public office is not required to produce records when the underlying request is ambiguous or overly broad. 133 When a request lacks the details the office needs to identify where to look for responsive materials, or seeks what amounts to a complete duplication of the office’s files, the Public Records Act promotes cooperation to produce a successful, revised request.

a. Mandatory Clarification in Response to Ambiguous or Overly Broad Request The Ohio Public Records Act allows a public office to deny any overly broad or ambiguous records request. However, the public office is required to give the requester the opportunity to revise the request by explaining how it ordinarily maintains and accesses the records it keeps. The office’s records retention schedules can be a helpful starting point, because they categorize records based on how they are used and the purpose they serve. Although a public office has a duty to facilitate broader access to public records by organizing and maintaining them so they are available for inspection or copying, 134 using an organizational system different than, and inconsistent with, a given request does not mean that the public office

123

R.C. 149.43(B)(7); State ex rel. Call v. Fragale, 104 Ohio St.3d 276, 2004-Ohio-6589, at ¶¶2-8. State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 626, 1994-Ohio-5. State ex rel. Gibbs v. Concord Twp. Trustees, 152 Ohio App.3d 387, 2003-Ohio-1586, at ¶31 (11th Dist. 2003). 126 R.C. 1.51 (rules of statutory construction). 127 State ex rel. Slagle v. Rogers, 103 Ohio St.3d 89, 90, 2004-Ohio-4354, at ¶5. 128 State ex rel. Slagle v. Rogers, 103 Ohio St.3d 89, 92, 2004-Ohio-4354, at ¶15; for another example see R.C. 5502.12 (Dept. of Public Safety may charge $4.00 for each accident report copy). 129 State ex rel. Call v. Fragale, 104 Ohio St.3d 276, 2004-Ohio-6589 (court offered uncertified records at actual cost, but may charge up to $1.00 per page for certified copies pursuant to R.C. 2303.20); State ex rel. Butler County Bar Ass’n v. Robb (12th Dist. 1990), 66 Ohio App.3d 398. 130 State ex rel. Call v. Fragale, 104 Ohio St.3d 276, 2004-Ohio-6589, at ¶6; Breeden v. Mitrovich, 11th Dist. No. 2005-L-055, 2005-Ohio-5763, at ¶10. 131 R.C. 149.43(B)(6); For discussion of previous law, see 2004 Ohio Op. Att’y Gen. No. 011 (county recorder may not prohibit person from using digital camera to duplicate records nor assess a copy fee). 132 State ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 2010-Ohio-5711 (2010); State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2010-Ohio1901(2010); State ex rel. Zauderer v. Joseph (10th Dist. 1989), 62 Ohio App.3d 752. 133 R.C. 149.43(B)(2); State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶19. 134 R.C. 149.43(B)(2). 124 125

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The Ohio Public Records Act Chapter Two: Requesting Public Records has violated this duty. 135 At least one court has held that the primary concern of a retrieval system is to accommodate the mission of the office, and that providing reasonable access for citizens is only secondary. 136 For instance, if a person requests copies of all police service calls for a particular geographical area identified by street names, but the computer program cannot identify calls based on street names, the request does not match the method of retrieval and is not one that the office has a duty to fulfill. 137 However, the office is mandated by R.C.149.43(B)(2) to enable revision of the request so it better comports with the organizational approach the office utilizes.

What is An Ambiguous or Overly Broad Request?

An ambiguous request is one that lacks the clarity a public office needs to ascertain what the requestor is seeking and where to look for records that might be responsive. The wording may be vague or subject to interpretation. An overly broad request is one that is so inclusive that the public office is unable to identify the records sought based on the manner in which it routinely organizes and keeps records. Public records requests that are worded like legal discovery requests—for example, a request for “any and all” records that document a particular activity of the office or of a particular employee—are often overly broad for purposes of the Public Records Act because they lack the detail the office needs to identify what might be responsive. Examples of overly broad requests include requests for: o o o

All records containing particular names or words 138 Any and all records kept by the office, including but not limited to, those having to do with a particular topic 139 Every report filed with the public office for a particular time period (if the office does not organize records in that manner) 140

b. Optional Negotiation When Identity, Purpose, or Request in Writing Would Assist Identifying, Locating, or Delivering Requested Records As noted elsewhere, a requester cannot be required to make a request in writing, or to reveal his or her identity and/or reasons for requesting records. In fact, requiring the requester to disclose identity or intended use constitutes a denial of the request. 141 However, in the event that a public office believes that either a written request, the intended use of the information, or the requester’s identity would benefit the requester by enhancing the ability of the public office to identify, locate, or deliver the requested records, the public office may inform the requester that giving this

135

See, State ex rel. Oriana House, Inc. v. Montgomery, 10th Dist. Nos. 04AP-504, 2005-Ohio-3377 (the fact that requester made what it believed to be a specific request does not mandate that the public office keep its records in such a way that access to the records was possible); State ex rel. Evans v. City of Parma, 8th Dist. No. 81236, 2003-Ohio-1159. 136 State ex rel. Zauderer v. Joseph (10th Dist. 1989), 62 Ohio App.3d 752. 137 State ex rel. Evans v. City of Parma, 8th Dist. No. 81236, 2003-Ohio-1159. 138 State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 2001-Ohio-193. 139 State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-2788, at ¶19 (general request impermissibly sought what approximated a “complete duplication” of official’s correspondence files). 140 State ex rel. Zauderer v. Joseph (10th Dist. 1989), 62 Ohio App.3d 752. 141 R.C. 149.43(B)(4). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Two: Requesting Public Records information is not mandatory, and then ask if they are willing to provide the requested information to assist the public office in fulfilling the request. 142

7. Duty to Withhold Certain Records Records subject to a mandatory, “must not release” exception to the Public Records Act must be withheld by the public office in response to a public records request. (See Chapter Three, Section A. Categories of Exceptions - 1. “Must Not Release.”)

8. Option to Withhold or Release Certain Records Records subject to a discretionary exception give the public office the option to either withhold or release the record subject to that exception. (See Chapter Three, Section A. Categories of Exceptions – 2. “May Release, But May Choose to Withhold.”)

9. No Duty to Release Non-Records The public office need not disclose or create items that are “non-records” or non-existent. A public office is not required to create new records to respond to a public records request, even if it is only a matter of compiling information from existing records. 143 For example, if a person asks a public office for a list of cases pending against it, but the office does not keep such a list, the public office is under no duty to create a list to respond to the request. 144 Nor must the office conduct a search for and retrieve records that contain described information that is of interest to the requester. 145 As noted in Chapter One, there is no obligation to produce records that do not document the organization, functions, policies, decisions, procedures, operations, or other activities of the office. 146 In short, an item must document something that the office does. 147 The Ohio Supreme Court expressly rejected the notion that an item is a “record” simply because the public office could use the item to carry out its duties and responsibilities. 148 Instead, the public office must actually use the item; otherwise it is not a record. 149 The Public Records Act does not restrict a public office from releasing non-records, but other laws may affect the confidentiality of non-records. 150

10. Denial of a Request, Redaction, and a Public Office’s Duties of Notice Both the withholding of an entire record and the redaction of any part of a record are considered a denial of the request to inspect or copy that particular item. 151 Any requirement by the public office 142

R.C. 149.43(B)(5). State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 1999-Ohio-447; State ex rel. Warren v. Warner, 84 Ohio St.3d 432, 433, 1999-Ohio-475; State ex rel. Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 1998-Ohio-242; State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept. (1998), 82 Ohio St.3d 37, 42; State ex rel. Fant v. Mengel (1991), 62 Ohio St.3d 197. 144 Fant v. Flaherty (1992), 62 Ohio St.3d 426; State ex rel. Fant v. Mengel (1991), 62 Ohio St.3d 197; Pierce v. Dowler (Nov. 1, 1993), 12th Dist. No. CA93-08-024, unreported. 145 State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 154, 1999-Ohio-447 (a public office has “no duty under R.C. 149.43 to create new records by searching for and compiling information from existing records”). 146 State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, at ¶25 (citations omitted); State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186, 188 (“To the extent that any item contained in a personnel file is not a ‘record,’ i.e., does not serve to document the organization, etc., of the public office, it is not a public record and need not be disclosed.”); R.C. 149.011(G). 147 State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept. (1998), 82 Ohio St.3d 37 (allegedly racist emails circulated between public employees are not “records” when they were not used to conduct the business of the public office). 148 See, State ex rel. Beacon Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 1998-Ohio-180. 149 See, 2007 Ohio Op. Att’y Gen. No. 034 (an item of physical evidence in the possession of the Prosecuting Attorney that was not introduced as evidence was found not to be a “record”); State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, at ¶27 (judge used redacted information to decide whether to approve settlement); State ex rel. Beacon Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 1998-Ohio-180 (judge read unsolicited letters but did not rely on them in sentencing a criminal defendant, therefore, letters did not serve to document any activity of the public office and were not “records”); State ex rel. Sensel v. Leone, 85 Ohio St.3d 152, 1999-Ohio-446 (letters alleging inappropriate behavior of coach not “records” and can be discarded) (citing to Whitmore, supra); State ex rel. Carr v. Caltrider (May 16, 2001), Franklin C.P. No. 00CVH07-6001, unreported; State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept. (1998), 82 Ohio St.3d 37 (allegedly racist e-mail messages circulated between public employees were not “records”). 150 E.g., R.C. 1347.01 et seq. (Ohio Personal Information Systems Act). 151 R.C. 149.43(B)(1). 143

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The Ohio Public Records Act Chapter Two: Requesting Public Records that the requester disclose the requester’s identity or the intended use of the requested public record also constitutes a denial of the request. 152

a. Redaction – Statutory Definition “Redaction” means obscuring or deleting any information that is exempt from the duty to permit public inspection or copying from an item that otherwise meets the definition of a “record.” 153 For records on paper, redaction is the blacking or whiting out of non-public information in an otherwise public document. Audio, video, and other electronic records may be redacted by analogous technical processes that obscure or delete specific content. “If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt.” 154 Therefore, only that part of a record subject to an exception or other valid basis for withholding may be redacted. However, where excepted information is inextricably intertwined with the entire content of a particular record such that redaction cannot protect the excepted information, the entire record may be withheld. 155 A redaction will be considered to be a denial of a request to inspect or copy the redacted information, except if a federal or state law authorizes or requires the public office to make the redaction. 156

b. Requirement to Notify of and Explain Redactions and Withholding of Records In 2007, the General Assembly amended the Ohio Public Records Act to require public offices to either “notify the requester of any redaction or make the redaction plainly visible.” 157 In addition, if a request is denied, in part or in whole, the public office must “provide the requester with an explanation, including legal authority, setting forth why the request was denied.” 158 If the initial request was made in writing, the explanation for the denial also must be provided in writing. 159

c. No Obligation to Respond to Duplicate Request Where a public office denies a request, and the requester sends a follow-up letter reiterating a request for essentially the same records, the public office is not required to provide an additional response. 160

d. No Waiver of Unasserted Exceptions If the requester later files a mandamus action against the public office, the public office is not limited to the explanation(s) previously given for denial, but may rely on additional reasons or legal authority in defending the mandamus action. 161

152

R.C. 149.43(B)(4). R.C. 149.43(A)(11). R.C. 149.43(B)(1). 155 See, State ex rel. Master v. City of Cleveland, 76 Ohio St.3d 340, 1996-Ohio-300. See also, State ex rel. McGee v. Ohio State Bd. of Psychology (1990), 49 Ohio St.3d 59, 60 (where exempt information is so “intertwined” with the public information as to reveal the exempt information from the context, the record itself, and not just the exempt information, may be withheld). 156 R.C. 149.43(B)(1). 157 R.C. 149.43(B)(1). 158 R.C. 149.43(B)(3). 159 R.C. 149.43(B)(3). 160 State ex rel. Laborers International v. Summerville, 122 Ohio St.3d 1234, 2009-Ohio-4090. 161 R.C. 149.43(B)(3). 153 154

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The Ohio Public Records Act Chapter Two: Requesting Public Records 11. Burden or Expense of Compliance A public office cannot deny or delay response to a public records request on the grounds that responding will interfere with the operation of the public office. 162 However, when a request unreasonably interferes with the discharge of the public office’s duties, the office may not be obligated to comply. 163 For example, a requester does not have the right to the complete duplication of voluminous files of a public office. 164

12. Other Rights and Obligations of Public Offices A public records request may be made by any person, not just a citizen of Ohio. The requester is not generally required to give his or her identity, intended use of the information, or make the request in writing. If the request is oral, it is recommended that the recipient write down the details of and confirm them with the requester. The public office must provide requested records in any of the following media specified by the requester: (a) paper, (b) the same medium on which the public office keeps the record, or (c) any other medium on which the record can reasonably be duplicated “as an integral part of the normal operations of the public office.” 165 The public office must also transmit requested copies to a requester by any available requested means of delivery or transmission, but the public office may require the requester to pay the cost of the selected means in advance. (See Chapter Two, Section B. Rights and Obligations of a Public Office.)

C. Statutes That Modify General Rights and Duties The General Assembly can change the preceding rights and duties for particular records, for particular public offices, for particular requesters, or in specific situations. Be aware that the general rules of public records law may be modified in a variety and combination of ways. Below are a few examples of modifications to the general rule.

1. Particular Records (a) Although most DNA records kept by the Ohio Bureau of Criminal Identification and Investigation (BCI&I) are protected by exceptions, 166 Ohio law requires that the results of DNA testing of an inmate who obtains post-conviction testing must be disclosed to any requester, 167 which would include results of testing conducted by BCI&I. (b) Certain Ohio sex offender records must be posted on a public website, without waiting for an individual public records request. 168 (c) Ohio law specifies that a public office’s release of an “infrastructure record” or “security record” to a private business for certain purposes does not waive these 162

State ex rel. Beacon Journal Publ’g Co. v. Andrews (1976), 48 Ohio St.2d 283 (“[n]o pleading of too much expense, or too much time involved, or too much interference with normal duties, can be used by the [public office] to evade the public’s right to inspect and obtain a copy of public records within a reasonable amount of time.”). 163 State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 623, 1994-Ohio-5 (“unreasonabl[e] interfere[nce] with the discharge of the duties of the officer having custody” of public records creates an exception to the rule that public records should be generally available to the public) (citing State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 81); Barton v. Shupe (1988), 37 Ohio St.3d 308; State ex rel. Patterson v. Ayers (1960), 171 Ohio St. 369 (“anyone may inspect [public] records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the records”); State ex rel. Zauderer v. Joseph (10th Dist. 1989), 62 Ohio App.3d 752. 164 State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-788, at ¶17 (the Public Records Act “does not contemplate that any individual has the right to a complete duplication of voluminous files kept by government agencies.” (citation omitted)). 165 R.C. 149.43(B)(6),(7); State ex rel. Dispatch Printing Co. v. Morrow Cty. Pros. Office, 105 Ohio St.3d 172, 2005-Ohio-685, at ¶13. 166 R.C. 109.573(D),(E),(G)(1); R.C. 149.43(A)(1)(j). 167 R.C. 2953.81(B). 168 R.C. 2950.08(A) (BCI&I sex offender registry and notification, or “SORN” information, not open to the public); but compare, R.C. 2950.13(A)(11) (certain SORN information must be posted as a database on the internet and is a public record under R.C. 149.43). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Two: Requesting Public Records exceptions, 169 despite the usual rule that voluntary release to a member of the public waives any exception(s). 170 (d) Journalists may inspect, but not copy, some of the records to which they have special access, despite the general right to choose either inspection or copies. 171

2. Particular Public Offices (a) The Ohio Bureau of Motor Vehicles is authorized to charge a non-refundable fee of four dollars for each highway patrol accident report for which it receives a request, 172 and a coroner’s office may charge a record retrieval and copying fee of twenty-five cents per page, with a minimum charge of one dollar, 173 despite the general requirement that a public office may only charge the “actual cost” of copies. 174 (b) Ohio’s courts are not subject to the Ohio Public Records Act. Rather, courts apply the records access rules of the Ohio Supreme Court Rules of Superintendence. 175

3. Particular Requesters or Purposes (a) Directory information concerning public school students may not be released if the intended use is for a profit-making plan or activity. 176 (b) Journalists, commercial requesters, and incarcerated persons are subject to combinations of modified rights and obligations, discussed below.

4. Modified Records Access by Certain Requesters The rights and obligations of the following requesters differ from those generally provided by the Ohio Public Records Act. The intended use of the records, or motive behind the request, may be relevant. Also, the requester may be required to provide more information or make his or her request in a specific fashion. Some requesters are given greater access to records than other persons, and some are more restricted. These are only examples. Changes to the law are constantly occurring, so be sure to check for any current law modifying access to the particular public records with which you are concerned.

a. Prison inmates Prison inmates may request public records, 177 but they are limited to a statutorily mandated process if requesting any public record concerning a criminal investigation or prosecution or a juvenile delinquency investigation that otherwise would be a criminal investigation or prosecution if the subject were an adult. 178 The criminal investigation records that may be requested by an inmate using this process are broader than those defined under the Confidential Law 169

R.C. 149.433(C). See, e.g., State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041. 171 R.C. 4123.88(D) (Industrial Commission or Workers Compensation Bureau shall disclose to journalist addresses and telephone numbers of claimants, and the dependents of those claimants); R.C. 313.10(D) (“A journalist may submit to the coroner a written request to view preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner”). 172 R.C. 5502.12 (also provides that other agencies which submit such reports may charge requesters who claim an interest arising out of a motor vehicle accident a non-refundable fee not to exceed four dollars). 173 R.C. 313.10(B). 174 State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 1994-Ohio-5. See also, State ex rel. Russell v. Thomas, 85 Ohio St.3d 83, 1999-Ohio-435 (one dollar per page did not represent actual cost of copies); 2001 Ohio Op. Atty. Gen. No. 012. 175 Rules of Superintendence for the Courts of Ohio. For additional discussion, see Chapter Six: Court Records. 176 R.C. 3319.321(A) (Further, the school “may require disclosure of the requester’s identity or the intended use of the directory information . . . to ascertain whether the directory information is for use in a profit-making plan or activity.”). 177 See State ex rel. Dehler v. Collins (10th Dist.), 2010-Ohio-5436 (correctional facilities may be able to limit the access to, and provision of, requested records due to personnel and safety considerations); see also, State ex rel. Dehler v. Kelly (11th Dist.), 2010-Ohio-3053 (Prison officials had to comply with various requests submitted by inmate.). 178 R.C. 149.43(B)(8). NOTE: The language is not limited to requests for criminal investigations concerning the inmate who is making the request. 170

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The Ohio Public Records Act Chapter Two: Requesting Public Records Enforcement Investigatory Records (CLEIRs) exception, and include offense and incident reports. 179 A public office is not required to produce such records in response to an inmate request unless the inmate obtains a finding from the judge who sentenced or otherwise adjudicated the inmate’s case that the information sought is necessary to support what appears to be a justiciable claim. 180 The inmate’s request must be filed in the original criminal action against the inmate, not in a separate, subsequent forfeiture action involving the inmate.181 Unless an inmate requesting public records concerning a criminal prosecution has first followed these requirements, any suit to enforce his or her request will be dismissed. 182 The appropriate remedy for an inmate to seek if he or she follows these requirements is an appeal of the sentencing judge’s findings, not a mandamus action.183 Any public records that were obtained by a litigant prior to the ruling in Steckman v. Jackson are not excluded for use in the litigant’s post-conviction proceedings.184

b. Commercial Requesters Unless a specific statute provides otherwise, 185 it is irrelevant whether the intended use of requested records is for commercial purposes. 186 However, if an individual or entity is making public records requests for commercial purposes, the public office receiving the requests can limit the number of records “that the office will transmit by United States mail to ten per month.” 187 While the Revised Code does not specifically define “commercial purposes” 188 it does require that the term be narrowly construed, and lists specific activities excluded from the definition: 189  Reporting or gathering news;  Reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government; or  Nonprofit educational research.

c. Journalists Several statutes grant “journalists” 190 enhanced access to certain records that are not available to other requesters. This enhanced access is sometimes conditioned on the journalist providing information or representations not normally required of a requester.

179

State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, at ¶¶9-18; State ex rel. Sevayega v. Reis, 88 Ohio St.3d 458, 2000-Ohio383. R.C. 149.43(B)(8). 181 State of Ohio v. Lather, 6th Dist No. S-08-036, 2009-Ohio-3215; State of Ohio v. Chatfield, 5th Dist. No. 10CA12, 2010-Ohio-4261 (inmate may file R.C. 149.43(B)(8) motion pro se, even if currently represented by criminal counsel in the original action). 182 State ex rel. Barb v. Cuyahoga Cty. Jury Commr., 8th Dist. No. 93326, 2009-Ohio-3301; Hall v. State, 11th Dist. No. 2008-T-0073, 2009-Ohio-404; State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, at ¶¶9-18; State ex rel. Sevayega v. Reis, 88 Ohio St.3d 458, 2000-Ohio-383. 183 State of Ohio v. Thornton, 2nd Dist No. 23291, 2009-Ohio-5049. 184 State v. Broom, 123 Ohio St.3d 114, 2009-Ohio-4778. 185 E.g., R.C. 3319.321(A) (prohibits schools from releasing student directory information “to any person or group for use in a profit-making plan or activity.”). 186 1990 Ohio Op. Att’y Gen. No. 050; see also, R.C. 149.43(B)(4); but see, R.C. 149.43(B)(7) (public office may limit copies mailed to requester if purpose is commercial). 187 R.C. 149.43(B)(7) (”unless the person certifies to the office in writing that the person does not intend to use or forward the requested records, or the information contained in them, for commercial purposes”). NOTE: The limit only applies to requested transmission “by United States mail.” 188 The statute does not contain a general definition of “commercial purposes” but does define “commercial” in the context of requests to the Bureau of Motor Vehicles. There, “commercial” is defined as “profit-seeking production, buying, or selling of any good, service, or other product.” R.C. 149.43(F)(2)(c). 189 R.C. 149.43(B)(7). 190 R.C. 149.43(B)(9) states: “As used in [division (B) of R.C. 149.43], “journalist” means a person engaged in, connected with, or employed by any news medium, including a newspaper, magazine, press association, news agency, or wire service, a radio or television station, or a similar medium, for the purpose of gathering, processing, transmitting, compiling, editing, or disseminating information for the general public.” 180

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The Ohio Public Records Act Chapter Two: Requesting Public Records For example, a journalist may obtain the actual residential address of a peace officer, parole officer, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, or EMT, whereas other members of the public may not. If the individual’s spouse, former spouse, or child is employed by a public office, a journalist may obtain the name and address of that spouse or child’s employer in this manner, as well. 191 In order to obtain this information, however, the journalist must: i) Make the request in writing; ii) Identify himself or herself by name, title, and employer’s name and address; and iii) State that disclosure of the information sought would be in the public interest, and sign the request. 192 (See Journalist Request Table on next page for more details.)

191

R.C. 149.43(B)(9). R.C. 149.43(B)(9); see also, 2007 Ohio Op. Att’y Gen. No. 039 (“[R.C. 2923.129(B)(2)] prohibits a journalist from making a reproduction of information about the licensees of concealed carry licenses by any means, other than through his own mental processes.”). 192

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The Ohio Public Records Act Chapter Two: Requesting Public Records Journalist Requests Type of Request

Ohio Revised Code Section

Requester may:

Actual personal residential address of a:  Peace officer, parole officer, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or BCI&I Agent

149.43(B)(9)

Inspect or copy the record(s)

Business name and address, if the business is a public office, of a spouse, former spouse, or child of the following:  Peace officer, parole officer, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or BCI&I Agent

149.43(B)(9)

Inspect or copy the record(s)

313.10(D)

Inspect the record(s) only, but may not copy them or take notes

Concealed Carry Weapon (CCW) Permits: Name, county of residence, and date of birth of a person for whom the sheriff issued, suspended, or revoked a permit for a concealed weapon:  License  Replacement license  Renewal license  Temporary emergency license  Replacement temporary emergency license

2923.129(B)(2)

Inspect the record(s) only, but may not copy them or take notes

Workers Compensation Initial Filings, including:  Addresses and telephone numbers of claimants, regardless of whether their claims are active or closed, and the dependents of those claimants.

4123.88 (D)

Inspect or copy the record(s)

2151.142 (D)

Inspect or copy the records(s)

Coroner Records, including:  Preliminary autopsy and investigative notes  Suicide notes  Photographs of the decedent made by the coroner or those directed or supervised by the coroner

Actual confidential personal residential address of a:  Public children service agency employee  Private child placing agency employee  Juvenile court employee  Law enforcement agency employee Note: The journalist must adequately identify the person whose address is being sought, AND must make the request to the agency by which the individual is employed OR to the agency that has custody of the records.

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The Ohio Public Records Act Chapter Two: Requesting Public Records 5. Modified Access to Certain Public Offices’ Records As with requesters, the rights and obligations of public offices can be modified by law. Some of these modifications include conditions on obtaining records in volume and permissible charges for copying. The following provisions are only examples. The law is subject to change, so be sure to check for any current law modifying access to the particular public records with which you are concerned.

a. Bulk Commercial Requests from Ohio Bureau of Motor Vehicles “The bureau of motor vehicles may adopt rules pursuant to Chapter 119 of the Revised Code to reasonably limit the number of bulk commercial special extraction requests made by a person for the same records or for updated records during a calendar year. The rules may include provisions for charges to be made for bulk commercial special extraction requests for the actual cost of the bureau, plus special extraction costs, plus ten percent. The bureau may charge for expenses for redacting information, the release of which is prohibited by law.” 193 The statute sets out definitions of “actual cost,” “bulk commercial extraction request,” “commercial,” “special extraction costs,” and “surveys, marketing, solicitation, or resale for commercial purposes.” 194

b. Copies of Coroner’s Records Generally, all records of a coroner’s office are public records subject to inspection by the public. 195 A coroner’s office may provide copies to a requester upon a written request and payment by the requester of a retrieval and copying fee, at the rate of twenty-five cents per page or a minimum fee of one dollar. 196 However, the following are not public records: preliminary autopsy and investigative notes and findings; photographs of a decedent made by the coroner’s office; suicide notes; medical and psychological records of the decedent provided to the coroner; records of a deceased individual that are party of a confidential enforcement investigatory record; and laboratory reports generated from analysis of physical evidence by the coroner’s laboratory that is discoverable under Criminal Rule 16. 197 The following three classes of requesters may request the full coroner’s report, including the above materials that are otherwise excepted, pursuant to the guidelines in R.C. § 313.10(C)-(E): (1) next of kin of the decedent or the representative of the decedent’s estate; (2) journalists; and (3) insurers. Next of kin and insurers are able to request copies of the coroner’s full and complete record of the decedent. 198 Journalists may only view the materials otherwise excluded from public records but may not make copies of materials. 199 The coroner may contact decedent’s next of kin if a journalist or insurer has made a request pursuant to R.C. § 313.10(D), (E). 200

193

R.C. 149.43(F)(1). These definitions are set forth at R.C. 149.43(F)(2) (a-d), and (F)(3). 195 R.C. § 313.10 (B). 196 R.C. § 313.10 (B). 197 R.C. § 313.10 (A)(2)(a)-(f). 198 R.C. § 313.10 (C), (E). 199 R.C. § 313.10 (D). 200 R.C. § 313.10 (F). 194

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records III. Chapter Three: Exceptions to the Required Release of Public Records

201

While the Ohio Public Records Act presumes and favors public access to government records, the General Assembly has created exceptions to protect certain records from mandatory release. The Ohio Public Records Act does not define categories of exceptions, but the following guide may be useful in handling public records requests.

A. Categories of Exceptions There are two types of exceptions, and they are almost always created by state or federal statutes or codes.

1. “Must Not Release” The first type of exception prohibits a public office from releasing specific records or information to the public. Such records are prohibited from release in response to a public records request, often under civil or criminal penalty, and the public office has no choice but to deny the request. These mandatory restrictions are expressly included as exceptions to the Ohio Public Records Act by what is referred to as the “catch-all” exception in R.C. 149.43(A)(1)(v): “records the release of which is prohibited by state or federal law.” These laws can include constitutional provisions, 202 statutes, 203 common law, 204 or authorized state or federal administrative codes. 205 Local ordinances, however, cannot create public records exceptions. A few “must not release” exceptions apply to public offices on behalf of, and subject to the decisions of, another person. For example, a public legal or medical office may be restricted by the attorneyclient or physician-patient privileges from releasing certain records of their clients or patients. 206 In such cases, if the client or patient chooses to waive the privilege, the public office would be released from the otherwise mandatory exception. 207

2. “May Release, But May Choose to Withhold” The other type of exception is discretionary and gives a public office the choice of either withholding or releasing specific records often by excluding certain records from the definition of public records. 208 This means that the public office does not have to disclose these records in response to a public records request; however, it may do so if it chooses without fear of punishment under the law. Such provisions, usually state or federal statutes, are sometimes referred to as “discretionary exceptions.” Some laws contain ambiguous titles or text such as “confidential” or “private,” but the test for public records purposes is whether a particular law applied to a particular requester actually prohibits release of a record or gives the public office the choice to withhold the record.

201

For purposes of this section only the term “exception” will be used to describe laws authorizing the withholding of records from public records requests. The term “exemption” is often used in this field, apparently interchangeably. 202 State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 1999-Ohio-264. 203 See e.g., State ex rel. Beacon Journal Publ’g Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557 (applying R.C. 2151.421). 204 For example, common law attorney-client privilege. State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, at ¶27. 205 State ex rel. Lindsay v. Dwyer (10th Dist. 1996), 108 Ohio App.3d 462, 467 (STRS properly denied access to beneficiary form pursuant to Ohio Administrative Code); 2000 Ohio Op. Att’y Gen. No. 036 (federal regulation prohibits release of service member’s discharge certificate without service member’s written consent). But, compare, State ex rel. Gallon & Takacs Co. v. Conrad (10th Dist. 1997), 123 Ohio App.3d 554, 561 (if regulation was promulgated outside of agency’s statutory authority, the invalid rule will not constitute an exception to the public records act). 206 State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 1998-Ohio-290. 207 See, State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789 (illustrates the interplay of attorney-client privilege, waiver, public records law, and criminal discovery). 208 2000 Ohio Op. Att’y Gen. No. 021 (“R.C. 149.43 does not expressly prohibit the disclosure of items that are excluded from the definition of public record, but merely provides that their disclosure is not mandated.”); see also, 2001 Ohio Op. Att’y Gen. No. 041. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records B. Multiple and Mixed Exceptions Many records are subject to more than one exception. Some may be subject to both a discretionary exception (giving the public office the option to withhold), as well as a mandatory exception (which prohibits release), so it is important for public offices to find all exceptions that apply to a particular record, rather than acting on the first one that is found to apply.

C. Waiver of an Exception If a valid exception applies to a particular record, but the public office discloses it anyway, the office is deemed to have waived 209 (abandoned) that exception for that particular record, especially if the disclosure was to a person whose interests are antagonistic to those of the public office. 210 However, “waiver does not necessarily occur when the public office that possesses the information makes limited disclosures [to other public officials] to carry out its business.” 211 Under such circumstances, the information has never been disclosed to the public. 212

D. Applying Exceptions In Ohio, the records of a public office belong to the people, not to the government officials holding them. 213 Accordingly, the public records law must be liberally interpreted in favor of disclosure, 214 and any exceptions in the law that permit certain types of records to be withheld from disclosure must be narrowly construed. 215 The public office has the burden of establishing that an exception applies, and does not meet that burden if it has not proven that the requested records fall squarely within the exception. 216 The Ohio Supreme Court has stated that “in enumerating very narrow, specific exceptions to the public records statute, the General Assembly has already weighed and balanced the competing public policy considerations between the public’s right to know how its state agencies make decisions and the potential harm, inconvenience or burden imposed on the agency by disclosure.” 217 A “well-settled principle of statutory construction [is] that ‘when two statutes, one general and the other special, cover the same subject matter, the special provision is to be construed as an exception to the general statute which might otherwise apply.’” 218 Accordingly, where a statute permits a court to designate a fee, parties to an action must pay the court reporter for copies of court transcripts even

209

State ex rel. Wallace v. State Med. Bd. (2000), 89 Ohio St.3d 431, 435 (“Waiver” is defined as a voluntary relinquishment of a known right.). See, e.g., State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041; State ex rel. Gannett Satellite Network, Inc. v. Petro, 80 Ohio St.3d 261, 1997-Ohio-319; State ex rel. Zuem v. Leis (1990), 56 Ohio St.3d 20; Dept. of Liquor Control v. B.P.O.E. Lodge 0107 (1991), 62 Ohio St. 3d 1452 (introduction of record at administrative hearing waives any bar to dissemination); State ex rel. Coleman v. City of Norwood (Aug. 2, 1989), 1st Dist. No. C-890075, unreported (“the visual disclosure of the documents to relator [the requester in this case] waives any contractual bar to dissemination of these documents”); Covington v. Backner (June 1, 2000), Franklin Cty. C.P. No. 98 CVH-07-5242, unreported (attorney-client privilege waived where staff attorney had reviewed, duplicated, and inadvertently produced documents to defendants during discovery). 211 State ex rel. Musial v. N. Olmstead, 106 Ohio St.3d 459, 2005-Ohio-5521, at ¶15 (forwarding police investigation records to a city’s ethics commission did not constitute waiver); State ex rel. Cincinnati Enquirer v. Sharp (1st Dist.), 151 Ohio App.3d 756, 761, 2003-Ohio-1186 (statutory confidentiality of documents submitted to municipal port authority not waived when port authority shares documents with county commissioners). 212 State ex rel. Musial v. N. Olmstead, 106 Ohio St.3d 459, 465, 2005-Ohio-5521, at ¶35-39; State ex rel. Cincinnati Enquirer v. Sharp (1st Dist.), 151 Ohio App.3d 756, 761, 2003-Ohio-1186. 213 White v. Clinton Cty. Bd. Of Comm’rs. (1996), 76 Ohio St.3d 416, 420; Dayton Newspapers, Inc. v. Dayton (1976), 45 Ohio St.2d 107, 109 (quoting State ex rel. Patterson v. Ayers (1960), 171 Ohio St. 369, 371). 214 State ex rel. Mahajan v. State Medical Bd., 2010 Ohio 5995, ¶21; State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶17; State ex rel. Carr v. City of Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, at ¶29. 215 State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, at ¶10 (“A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception.”); State ex rel. Carr v. City of Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, at ¶30 (“Insofar as Akron asserts that some of the requested records fall within certain exceptions to disclosure under R.C. 149.43, we strictly construe exceptions against the public records custodian, and the custodian has the burden to establish the applicability of an exception.”). 216 State ex rel. Rocker v. Guernsey County Sheriff’s Office, 2010-Ohio-3288, ¶7. 217 State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 172, 1994-Ohio-246; NOTE: The Ohio Supreme Court has not authorized courts or other records custodians to create new exceptions to R.C. 149.43 based on a balancing of interests or generalized privacy concerns. State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, at ¶31. 218 State ex rel. Slagle v. Rogers, 103 Ohio St.3d 89, 92, 2004-Ohio-4354, at ¶14 (citing State ex rel. Dublin Securities, Inc. v. Ohio Div. of Securities, 68 Ohio St.3d 426, 429, 1994-Ohio-340 (1994)); see, R.C. 1.51. 210

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records though it may be in excess of the court’s “actual cost” to duplicate that record. 219 (See Chapter Two: C. Statutes That Modify General Rights and Duties) Another rule of construction courts often apply when interpreting a statute is the maxim expressio unius est exclusio alterius - “the expression of one thing is the exclusion of another.” 220 Applying this maxim would mean that if a statute expressly states that particular records of a public office are public, the remaining records would not be public. However, Ohio’s Supreme Court has clearly stated that just the opposite is true: if a statute expressly states that specific records of a public office are public, it does not mean that all other records of that office are not public, i.e., that the other records are exempt from disclosure. 221 Simply put, if a record does not clearly fit into one of the exceptions listed by the General Assembly, and is not otherwise prohibited from disclosure by other state or federal law, it must be disclosed.

E. Exceptions Enumerated in the Public Records Act The Ohio Public Records Act contains a list of records and types of information removed from the definition of “public records.” 222 The full text of those exceptions appears in R.C. 149.43(A)(1), a copy of which is included in Appendix A. Here, these exceptions (a-aa) are addressed in brief summaries. Note that although the language removing a record from the definition of “public records” gives the public office the choice of withholding or releasing the record, many of these records are further subject to other statutes that prohibit their release. 223 (a) Medical records, which are defined as any document or combination of documents that: 1) pertain to a patient’s medical history, diagnosis, prognosis, or medical condition, and 2) were generated and maintained in the process of medical treatment. 224 Records meeting this definition need not be disclosed. 225 Birth, death, and hospital admission or discharge records are not considered medical records for purposes of Ohio’s public records law. 226 Reports generated for reasons other than medical diagnosis or treatment, such as for employment or litigation purposes, are not “medical records” exempt from disclosure under the Public Records Act. 227 However, other statutes or federal constitutional rights may prohibit disclosure, 228 in which case the records or information are not public records under the “catchall exception,” R.C. 149.43(A)(1)(v).

219

State ex rel. Slagle v. Rogers, 103 Ohio St.3d 89, 2004-Ohio-4354, at ¶18 (“R.C. 2301.24 is a specific statute that requires a party to an action to pay the designated fee to the court reporter when seeking transcripts or copies of transcripts in the action.”) For additional discussion of costs, see Chapter Two: B. Rights and Obligations of a Public Office. 220 Black’s Law Dictionary, 581 (6th Ed. 1990). 221 Franklin County Sheriff’s Dept. v. State Employment Relations Bd., 63 Ohio St.3d 498 (1992) (while categories of records designated in R.C. 4117.17 clearly are public records, all other records must still be analyzed under R.C. 149.43). 222 R.C. 149.43(A)(1)(a)-(aa) 223 See, Chapter Three: B. Multiple and Mixed Exceptions. 224 R.C. 149.43(A)(1)(a) (applying Public Records Act definition of “medical records” at R.C. 149.43(A)(3)). 225 R.C. 149.43(A)(3); State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 1997-Ohio-349; 1999 Ohio Op. Att’y Gen. No. 06; but compare, State ex rel. Cincinnati Enquirer v. Adcock (Dec. 30, 2004), 1st Dist. No. C-040064, 2004-Ohio-7130. 226 R.C. 149.43(A)(3). 227 State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 144-45, 1995-Ohio-248 (a police psychologist report obtained to assist in the police hiring process is not a medical record); State of Ohio v. Hall (4th Dist.), 141 Ohio App.3d 561, 2000-Ohio-4059 (psychiatric reports compiled solely to assist court with competency to stand trial determination are not medical records). 228 See, e.g., 42 U.S.C. §§ 12101 et seq. (1990) (Americans with Disabilities Act); 29 U.S.C. §§ 2601 et seq. (1993) (Family and Medical Leave Act). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records (b) Records pertaining to probation and parole proceedings or proceedings related to the imposition of community control sanctions 229 and post-release control sanctions. 230 Examples of records covered by this exception include:  Pre-sentence investigation reports; 231  Records relied on to compile a pre-sentence investigation report; 232  Documents reviewed by the Parole Board in preparation for a parole hearing; 233 and  Records of parole proceedings. 234 (c) All records associated with the statutory process through which minors may obtain judicial approval for abortion procedures in lieu of parental consent. This exception includes records from both trial and appellate-level proceedings. 235 (d), (e), and (f): These three exceptions all relate to the confidentiality of adoption proceedings. Documents removed from the definition of “public record” include:  Records pertaining to adoption proceedings; 236  Contents of an adoption file maintained by the Department of Health; 237  A putative father registry; 238 and  An original birth record after a new birth record has been issued 239 In limited circumstances, release of adoption records and proceedings may be appropriate. For example:  The Department of Job and Family Services may release a putative father’s registration form to the mother of the minor or to the agency or attorney who is attempting to arrange the minor’s adoption. 240  Non-identifying social and medical histories may be released to an adopted person who has reached majority or to the adoptive parents of a minor. 241  An adult adopted person may be entitled to the release of identifying information or access to his or her adoption file. 242 (g) Trial preparation records: “trial preparation record,” for the purposes of the Ohio Public Records Act, is defined as “any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.” 243

229

R.C. 149.43(A)(9) (“Community control sanction” has the same meaning as in R.C. 2929.01). R.C. 149.43(A)(1)(b); R.C. 149.43(A)(10) (“Post-release control sanction” has the same meaning as in R.C. 2967.01). 231 MADD v. Gosser (1985), 20 Ohio St.3d 30, 32 n. 2. 232 Hadlock v. Polito (8th Dist. 1991), 74 Ohio App.3d 764, 766. 233 Lipshutz v. Shoemaker (1990), 49 Ohio St.3d 88, 90. 234 Gaines v. Adult Parole Authority (1983), 5 Ohio St.3d 104. 235 R.C. 149.43(A)(1)(c) (referencing R.C. 2505.073(B)). 236 R.C. 149.43(A)(1)(d). 237 R.C. 149.43(A)(1)(d) (referencing R.C. 3705.12). 238 R.C. 149.43(A)(1)(e) (referencing R.C. 3107.062, 3111.69). 239 R.C. 3705.12(A)(2). 240 R.C. 3107.063. 241 R.C. 3107.17(D). 242 R.C. 149.43(A)(1)(f); R.C. 3107.38(B) (adopted person whose adoption was decreed prior to January 1, 1964 may request adoption file); R.C. 3107.40, 3107.41 (access to adoption file for person whose adoption was decreed after January 1, 1964 is dependent on whether the adoption file has either a denial of release form or an authorization of release form). 243 R.C. 149.43(A)(4). 230

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records Documents that a public office obtains through discovery during litigation are considered trial preparation records. 244 In addition, material compiled for a public attorney’s personal trial preparation constitutes a trial preparation record. 245 The trial preparation exception does not apply to settlement agreements or settlement proposals. 246 (h) Confidential Law Enforcement Investigatory Records: CLEIRs are defined 247 as records that (1) pertain to a law enforcement matter, and (2) have a high probability of disclosing any of the following:  The identity of an uncharged suspect;  The identity of an information source or witness to whom confidentiality has been “reasonably promised;”  Information that would tend to reveal the identity of a source or witness, where the source or witness was “reasonably promised” confidentiality;  Specific confidential investigatory techniques or procedures or specific investigatory work product; or  Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source. (i) Records containing confidential “mediation communications” (R.C. 2710.03) or records relating to the Ohio Civil Rights Commission’s discrimination complaint, investigation, and conciliation process (R.C. 4112.05). 248 (j) DNA records stored in the state DNA database pursuant to R.C. 109.573. 249 (k) Inmate records released by the Department of Rehabilitation and Correction to the Department of Youth Services or a court of record pursuant to R.C. 5120.21(E). 250 (l) Records of the Department of Youth Services (DYS) regarding children in its custody that are released to the Department of Rehabilitation and Correction (DRC) for the limited purpose of carrying out the duties of the DRC. 251 (m) Intellectual property records; while this exception sounds broad on its face, it has a specific definition for the purposes of the Ohio Public Records Act, and is limited to those records that are produced or collected: (1) by or for state university faculty or staff; (2) in relation to studies or research on an educational, commercial, scientific, artistic, technical, or scholarly issue; and (3) which have not been publicly released, published, or patented. 252

244

Cleveland Clinic Found. v. Levin, 120 Ohio St.3d 1210, 2008-Ohio-6197, at ¶10. State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 431-32. State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, at ¶¶16-21. 247 R.C. 149.43(A)(2). 248 R.C. 149.43(A)(1)(i). 249 R.C. 149.43(A)(1)(j). 250 R.C. 5120.21(A). 251 R.C. 5139.05(D)(1); see, R.C. 5139.05(D) for all records maintained by DYS of children in its custody. 252 R.C. 149.43(A)(1)(m); R.C. 149.43(A)(5); see also, State ex rel. Physicians Comm. for Responsible Medicine v. Bd. of Trs. of Ohio State Univ., 108 Ohio St.3d 288, 2006-Ohio-903 (In finding university’s records of spinal cord injury research to be exempt intellectual property records, Court ruled that limited sharing of the records with other researchers to further the advancement of spinal cord injury research did not mean that the records had been “publicly released”). 245 246

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records (n) Donor profile records. Similar to the intellectual property exception, the “donor profile records” exception is given a specific, limited definition for the purposes of the Public Records Act. First, it only applies to records about donors or potential donors to public colleges and universities. 253 Second, the names and reported addresses of all donors and the date, amount, and condition of their donation(s), are all public information. 254 The exception applies to all other donor or potential donor records. (o) Records maintained by the Ohio Department of Job and Family Services on statutory employer reports of new hires. 255 (p) Peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT or investigator of the Bureau of Criminal Identification and Investigation residential and familial information. 256 (q) Trade secrets of certain county and municipal hospitals: “Trade secrets” are defined at R.C. 1333.61(D), the definitional section of Ohio’s Uniform Trade Secrets Act. (r) Information pertaining to the recreational activities of a person under the age of eighteen. This includes any information that would reveal the person’s:  Address or telephone number, or that of person’s guardian, custodian, or emergency contact person;  Social Security Number, birth date, or photographic image;  Medical records, history, or information; or  Information sought or required for the purpose of allowing that person to participate in any recreational activity conducted or sponsored by a public office or obtain admission privileges to any recreational facility owned or operated by a public office. 257 (s) Listed records of a child fatality review board (except for the annual reports the boards are required by statute to submit to the Ohio Department of Health). 258 The listed records are also prohibited from unauthorized release by R.C. 307.629(B). (t) Records and information provided to the executive director of a public children services agency or prosecutor regarding the death of a minor from possible abuse, neglect, or other criminal conduct. Some of these records are prohibited from release to the public. Others may become public depending on the circumstances. 259 (u) Nursing home administrator licensing test materials, examinations, or evaluation tools. 260 (v) Records the release of which is prohibited by state or federal law; this is often called the catchall exception. Although state and federal statutes can create both mandatory and discretionary exceptions by themselves, this provision also incorporates as exceptions by reference any statutes or administrative code that prohibit the release of specific records. An agency rule designating particular records as confidential that is properly promulgated by a state or federal agency will constitute a valid catch-all exception 261 because such rules have the effect of law. 262 253

R.C. 149.43(A)(6) (“‘Donor profile record’ means all records about donors or potential donors to a public institution of higher education . . .”). R.C. 149.43(A)(6). 255 R.C. 149.43(A)(1)(o) (referencing R.C. 3121.894). 256 R.C. 149.43(A)(7); see, Chapter Six, Section C. (“Residential and Familial Information of Covered Professions”). 257 R.C. 149.43(A)(1)(r); R.C. 149.43(A)(8). 258 R.C. 149.43(A)(1)(s) (referencing R.C. 307.621-.629). 259 R.C. 149.43(A)(1)(t) (referencing R.C. 5153.171). 260 R.C. 149.43(a)(1)(u) (referencing R.C. 4751.04) 261 State ex rel. Lindsay v. Dwyer (10th Dist. 1996),108 Ohio App.3d 462 (State Teachers Retirement System properly denied access to beneficiary form pursuant to Ohio Administrative Code); 2000 Ohio Op. Att’y Gen. No. 036 (service member’s discharge certificate prohibited from release by Governor’s Office of Veterans Affairs, per federal regulation, without service member’s written consent). 262 Columbus and Southern Ohio Elec. Co. v. Indus. Comm. (1992), 64 Ohio St.3d 119, 122; Doyle v. Ohio Bureau of Motor Vehicles (1990), 51 Ohio St.3d 46, 48; State ex rel. DeBoe v. Indus. Comm. (1954), 161 Ohio St. 67 (paragraph one of syllabus). 254

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records But, if the rule was promulgated outside the authority statutorily granted to the agency, the rule is not valid and will not constitute an exception to disclosure. 263 (w) Proprietary information of or relating to any person that is submitted to or compiled by the Ohio Venture Capital Authority. 264 (x) All information and evaluations regarding the preparedness and capacity of trauma centers “to respond to disasters, mass casualties, and bioterrorism.” 265 (y) Financial statements and data any person submits for any purpose to the Ohio Housing Finance Agency or the Controlling Board in connection with applying for, receiving, or accounting for financial assistance from the agency, and information that identifies any individual who benefits directly or indirectly from financial assistance from the agency. (z) Records and information relating to foster caregivers and children housed in foster care, as well as children enrolled in licensed, certified, or registered child care centers. This exception applies only to records held by county agencies or the Ohio Department of Job and Family Services. 266 (aa) Military discharges recorded with a county recorder. 267

F. Exceptions Affecting Personal Privacy Ohio has no general privacy law comparable to the federal Privacy Act. 268 Accordingly, there is no general “privacy exception” to the Ohio Public Records Act. However, a public office is obligated to protect certain non-public record personal information from unauthorized dissemination. 269 Though many of the exceptions to the Public Records Act apply to information people would consider “private,” this section focuses specifically on records and information that are protected by: (1) the right to privacy found in the United States Constitution; (2) House Bill 46, a recently-passed Ohio law designed to protect personal information on the internet; and (3) Ohio’s Personal Information Systems Act, Chapter 1347 of the Ohio Revised Code.”

1. Constitutional Right to Privacy The U.S. Supreme Court recognizes a constitutional right to informational privacy under the Fourteenth Amendment’s Due Process Clause. This right protects people’s “interest in avoiding divulgence of highly personal information,” 270 but must be balanced against the public interest in the information. 271 Such information cannot be disclosed unless disclosure “narrowly serves a compelling state interest.” 272 In Ohio, the U.S Court of Appeals for the Sixth Circuit has limited this right to informational privacy to interests that “are of constitutional dimension,” that are considered “fundamental rights” or rights

263

State ex rel. Gallon & Takacs Co., L.P.A. v. Conrad (10th Dist. 1997), 123 Ohio App.3d 554, 560-61 (BWC administrative rule prohibiting release of managed care organization applications was unauthorized attempt to create exception to Public Records Act). 264 R.C. 149.43(A)(1)(w); see, R.C. 150.01. 265 R.C. 149.43(A)(1)(x); R.C. 3701.072. 266 R.C. 149.43(A)(1)(z); see, R.C. 5101.29. 267 R.C. 149.43(A)(1)(aa); see, R.C. 317.24. 268 5 U.S.C. 552a. 269 See, e.g., R.C. 1347.05(G) (Public offices must “[t]ake reasonable precautions to protect personal information in the system from unauthorized modification, destruction, use, or disclosure”). 270 Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055 (citing Whalen v. Roe (1977), 429 U.S. 589, 598-600). 271 Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055, 1061 (citing Whalen v. Roe (1977), 429 U.S. 589, 602-04); Nixon v. Administrator of Gen. Servs. (1977), 433 U.S. 425; see also, J. P. v. DeSanti (6th Cir. 1981), 653 F.2d 1080, 1091. 272 Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055, 1059. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records implicit in the concept of ordered liberty.” 273 That is, the consequence of disclosure must implicate some other right protected by the Constitution. In the Sixth Circuit case of Kallstrom v. City of Columbus, several police officers sued the city for releasing their unredacted personnel files to an attorney for members of a criminal gang whom the officers had investigated and were testifying against in a major drug case. 274 The personnel files contained the officers’ and their family members’ addresses and phone numbers, as well as banking information, Social Security Numbers, and photo IDs. 275 The Court held that, because release of the information could lead to the gang members causing the officers bodily harm, the officers’ fundamental constitutional rights to personal security and bodily integrity were at stake. 276 The Court also described this constitutional right as a person’s “interest in preserving [one’s] life.” 277 The Court then found that the Ohio Public Records Act did not require release of the files in this manner, because the disclosure did not “narrowly [serve] the state’s interest in ensuring accountable government.” 278 Based on the Sixth Circuit’s holding in Kallstrom, the Ohio Supreme Court subsequently held that police officers have a constitutional right to privacy in the officers’ personal information that could be used by defendants in a criminal case to “achieve nefarious ends.” 279 The Ohio Supreme Court has also suggested that the constitutional right to privacy would come into play where “release of personal information [would create] an unacceptable risk that a child could be victimized.” 280 In another Sixth Circuit case, a county sheriff held a press conference “to release the confidential and highly personal details” of a rape. 281 The Sixth Circuit held that a rape victim has a “fundamental right of privacy in preventing government officials from gratuitously and unnecessarily releasing the intimate details of the rape,” where release of the information served no penalogical purpose. 282 The Court indicated that release of some of the details may have been justifiable if the disclosure would have served “any specific law enforcement purpose,” including apprehending the suspect, but no such justification was offered in this case. 283 Neither the Ohio Supreme Court nor the Sixth Circuit have applied the constitutional right to privacy broadly. Public offices and individuals should thus be aware of this potential protection, but know that it is limited to circumstances involving fundamental rights, and that most personal information is not protected by it.

2. Personal Information Listed Online A 2008 law, R.C. 149.45, requires public offices to redact, and permits certain individuals to request redaction of, specific personal information 284 from any records made available to the general public on the internet. 285 A person must make this request in writing on a form developed by the Attorney General, specifying the information to be redacted and providing any information that identifies the 273

Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055, 1062 (quoting J. P. v. DeSanti (6th Cir. 1981), 653 F.2d 1080, 1090 (internal citations omitted in original)). Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055, 1059. 275 Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055, 1059. 276 Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055, 1063 (quoting Doe v. Claiborne County (6th Cir. 1996), 103 F.3d 495, 507). 277 Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055, 1063 (quoting Nishiyama v. Dickson County (6th Cir. 1987), 814 F.2d 277, 380) (en banc)). 278 Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055, 1065. 279 State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 282, 1999-Ohio-264. 280 State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 372; 2000-Ohio-345. 281 Bloch v. Ribar (6th Cir. 1998), 156 F.3d 673, 676. 282 Bloch v. Ribar (6th Cir. 1998), 156 F.3d 673, 686. 283 Bloch v. Ribar (6th Cir. 1998), 156 F.3d 673, 686. 284 “Personal information” is defined as an individual’s: social security number, federal tax identification number, driver’s license number or state identification number, checking account number, savings account number, or credit card number. R.C. 149.45(A)(1). 285 R.C. 149.45(C)(1). 274

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records location of that personal information. 286 In addition to the right of all persons to request the redaction of personal information defined above, persons in certain covered professions can also request the redaction of their actual residential address from any records made available by public offices to the general public on the internet. 287 When a public office receives a request for redaction, it must act in accordance with the request within five business days, if practicable. 288 If the public office determines that redaction is not practicable, it must explain to the individual why the redaction is impracticable within five business days. 289 R.C. 149.45 separately requires all public offices to redact, encrypt, or truncate the Social Security Numbers of individuals from any documents made available to the general public on the internet. 290 If a public office becomes aware that an individual’s Social Security Number was not redacted, the office must redact the Social Security Number within a reasonable period of time. 291 The statute provides that a public office is not liable in a civil action for any alleged harm as a result of the failure to redact personal information or addresses on records made available on the internet to the general public, unless the office acted with a malicious purpose, in bad faith, or in a wanton or reckless manner. 292 In addition to the protections listed above, R.C. 319.28 allows a covered professional 293 to submit a request, by affidavit, to remove his or her name from the general tax list of real and public utility property and insert initials instead. 294 Upon receiving such a request, the county auditor shall act within five days in accordance with the request. 295 If removal is not possible, the auditor’s office must explain why the removal and insertion is impracticable. 296

3. Ohio Personal Information Systems Act (PISA) 297 “Personal information” covered by PISA includes: 1. Any information that describes anything about a person; or 2. that indicates actions done by or to a person; or 3. that indicates that a person possesses certain personal characteristics; and 4. that contains, and can be retrieved from a system by, a name, identifying number, symbol, or other identifier assigned to a person. 298 “Confidential personal information” means personal information that is not a public record for purposes of section 149.43 of the Revised Code. 299

286

This form is available at http://www.OhioAttorneyGeneral.gov/files/Forms/Forms-for-Consumers/Request-To-Redact-Personal-Information. Covered professions include: peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or BCI & I investigator. (R.C. 149.45(A)(2). For additional discussion, see Chapter Six: C. Residential and Familial Information of Covered Professions; R.C. 149.45(D) (1) (this section does not apply to county auditor offices). The request must be on a form developed by the Attorney General, which is available at http://www.OhioAttorneyGeneral.gov/files/Forms/Forms-for-Law-Enforcement/Request-ToRedact-Address-(1). 288 R.C. 149.45(C)(2); R.C. 149.45(D)(2). 289 R.C. 149.45(C)(2); R.C. 149.45(D)(2). NOTE: Explanation of the impracticability of redaction by the public office can be either oral or written. 290 R.C. 149.45(B)(1),(2); NOTE: A public office is also obligated to redact social security numbers from records that were posted before the effective date of R.C. 149.45. 291 R.C. 149.45(E)(1). 292 R.C. 149.45(E)(2). 293 A peace officer, parole officer, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT or investigator of the bureau of criminal identification and investigation. R.C. 149.43(A)(7)(g). 294 R.C. 319.28(B)(1). 295 R.C. 319.28(B)(2). 296 R.C. 319.28(B)(2). 297 R.C. Chapter 1347. 298 R.C. 1347.01(E). 287

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records A personal information “system” is: 1. Any collection or group of related records that are kept in an organized manner and maintained by a state or local agency; and 2. from which personal information is retrieved by the name of the person or by some identifying number, symbol, or other identifier assigned to the person; including, 3. records that are stored manually and electronically. 300 The following are not “systems” for purposes of the PISA: 

Collected archival records in the custody of or administered under the authority of the Ohio Historical Society;



Published directories, reference materials or newsletters; or



Routine information that is maintained for the purpose of internal office administration, the use of which would not adversely affect a person. 301

PISA applies to those items to which the Ohio Public Records Act does not apply; that is, records that have been determined to be non-public, and items and information that are not “records” as defined by the Ohio Public Records Act. 302 The General Assembly has made clear that PISA is not designed to deprive the public of otherwise public information by incorporating the following provisions with respect to the Ohio Public Records and Open Meetings Acts: 

The provisions of this chapter shall not be construed to prohibit the release of public records, or the disclosure of personal information in public records, as defined in [the Ohio Public Records Act], or to authorize a public body to hold an executive session for the discussion of personal information if the executive session is not authorized under division (G) of [the Ohio Open Meetings Act]. 303



The disclosure to members of the general public of personal information contained in a public record, as defined in section 149.43 of the Revised Code, is not an improper use of personal information under this chapter. 304



As used in the Personal Information Systems Act, “confidential personal information” means personal information that is not a public record for purposes of [the Ohio Public Records Act]. 305

PISA generally requires accurate maintenance and prompt deletion of unnecessary personal information from “personal information systems” maintained by public offices, and protects personal information from unauthorized dissemination. 306 Based on provisions added to the law in 2009, state agencies 307 must adopt rules under Chapter 119 of the Revised Code regulating access to the confidential personal information the agency keeps, whether electronically or on paper. 308 No person shall knowingly access “confidential personal information” in violation of these rules, 309 and no person

299

R.C. 1347.15(A)(1). R.C. 1347.01(F). 301 R.C. 1347.01(F). 302 R.C. 149.011(G). 303 R.C. 1347.04(B). 304 R.C. 1347.04(B). 305 R.C. 1347.15(A)(1). 306 See, R.C. 1347.01 et seq. 307 R.C. 1347.15(A)(2); 2010 Ohio Ap. Att’y Gen. No. 016 (Ohio Bd. of Tax Appeals is a “judicial agency” for purposes of R.C. 1347.15). 308 R.C. 1347.15(B). 309 R.C. 1347.15(H)(1). 300

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records shall knowingly use or disclose “confidential personal information” in a manner prohibited by law. 310 A state agency may not employ persons who have violated access, use, or disclosure laws regarding confidential personal information. 311 In general, state and local agencies must “[t]ake reasonable precautions to protect personal information in the system from unauthorized modification, destruction, use, or disclosure.” 312

Sanctions for violations of PISA The enforcement provisions of PISA can include injunctive relief, civil damages, and/or criminal penalties, depending on the nature of the violation(s). 313 Note: Because PISA concerns the treatment of non-records and non-public records, it is not set out in great detail in this Sunshine Law manual. Public offices can find more detailed guidance on implementing the provision of PISA concerning limitations on access to confidential personal information at http://privacy.ohio.gov/government, under the heading “ORC 1347.15 Guidance.” Public offices should also consult with their legal counsel.

G. Exceptions Created by Other Laws (by Topic) 1. Attorney-Client Privilege, Discovery, and Other Litigation Items a. Attorney-Client Privilege “The attorney-client privilege is one of the oldest recognized privileges for confidential communications.” 314 Attorney-client privileged records and information must not be revealed without the client’s waiver. 315 Such records are thus prohibited from release by both state and federal law for purposes of the catch-all exception to the Ohio Public Records Act. The attorney-client privilege arises whenever legal advice of any kind is sought from a professional legal advisor in his or her capacity as such, and the communications relating to that purpose, made in confidence by the client, are at the client’s instance permanently protected from disclosure by the client or the legal advisor. 316 Records or information within otherwise public records that meet those criteria must be withheld or redacted in order to preserve attorney-client privilege. For example, drafts of proposed bond documents prepared by an attorney are protected by attorney-client privilege, and are not subject to disclosure. 317 The privilege applies to records of communications between public office clients and their attorneys in the same manner that it does for private clients and their counsel. 318 Communications between a client and his or her attorney’s agent may also be subject to the

310

R.C. 1347.15(H)(2). R.C. 1347.15(H)(3). R.C. 1347.05(G). 313 R.C. 1347.10, 1347.15, and 1347.99. 314 State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, at ¶19 (quoting Swidler & Berlin v. United States (1998), 524 U.S. 399). 315 State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, at ¶18; see e.g., Reed v. Baxter (6th Cir. 1998), 134 F.3d 351, 356; State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 383, 1998-Ohio-290; TBC Westlake, Inc. v. Hamilton Cty. Bd. of Revision, 81 Ohio St.3d 58, 1998-Ohio-445; State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 2000-Ohio-475; State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 1994-Ohio-261. 316 State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 265, 2005-Ohio-1508, at ¶21 (quoting Reed v. Baxter (6th Cir. 1998), 134 F. 3d 351, 355-56). 317 State ex rel. Benesch, Friedlander, Coplan & Aronoff, LLP v. City of Rossford (6th Dist. 2000), 140 Ohio App.3d 149, 156. 318 State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, at ¶23 (attorney-client privilege applies to communications between state agency personnel and their in-house counsel); American Motors Corp. v. Huffstutler (1991), 61 Ohio St.3d 343. 311 312

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records attorney-client privilege. 319 The privilege also applies to “documents containing communications between members of . . . a represented . . . public entity . . . about the legal advice given.” 320

b. Criminal Discovery The Ohio Supreme Court has determined that in a pending criminal proceeding, defendants may only seek records through discovery under the Rules of Criminal Procedure. 321 However, this limitation does not extend to police initial incident reports, which must be made available immediately, even to the defendant. 322 Before 1994, many criminal defendants were circumventing the discovery process by using the Ohio Public Records Act to obtain more records than they would otherwise have been entitled to receive. 323 This tactic was prohibited in the landmark case of State ex rel. Steckman v. Jackson. The Ohio Supreme Court found that allowing criminal defendants to use the Public Records Act in that manner, among other things, “unleveled” the playing field because prosecutors had no similar right to obtain additional discovery outside the criminal rules. 324 However, when the records requested by criminal defendants are not related to their ongoing criminal case, the discovery limitation does not apply. 325 Such requests must be analyzed in the same manner as any other public records request. Note that when the prosecutor discloses materials to the defendant pursuant to the rules of criminal procedure, that disclosure does not mean those records automatically become available for public disclosure. 326 The prosecutor does not waive 327 applicable public records exceptions, such as trial preparation records or confidential law enforcement records, 328 simply by complying with discovery rules. 329

c. Civil Discovery Unlike in the criminal arena, in pending civil court proceedings, the parties to civil proceedings are not confined to the materials available under the civil rules of discovery. 330 A civil litigant is permitted to use the Ohio Public Records Act in addition to the more restricted limits associated with civil discovery. 331 The nature of a request as either discovery or request for public records will determine available enforcement. 332 As to the use of these public records as evidence in litigation, the Ohio Rules of Evidence govern. 333 Justice Stratton’s concurring opinion in Gilbert v. Summit County, 104 Ohio St. 3d 660

319

State ex rel. Toledo Blade v. Toledo-Lucas Cty. Port Auth., 121 Ohio St. 3d 537, 2009-Ohio-1767 (a factual investigation may invoke the attorneyclient privilege). State v. Post (1987), 32 Ohio St.3d 380, 385. 320 See, State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 251, 1994-Ohio-261. 321 State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 432 (“information, not subject to discovery pursuant to Crim.R. 16(B), contained in the file of a prosecutor who is prosecuting a criminal matter, is not subject to release as a public record pursuant to R.C. 149.43 and is specifically exempt from release as a trial preparation record in accordance with R.C. 149.43(A)(4)”). 322 State ex rel. Rasul-Bey v. Onunwor, 94 Ohio St.3d 119, 120, 2002-Ohio-67 (criminal defendant’s limitation to using only criminal discovery does not apply to initial incident reports, which are subject to immediate release upon request); State of Ohio v. Twyford, 7th Dist. No. 98-JE-56, 2001-Ohio3241. 323 State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 428. 324 State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 428-29. 325 State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 281-82, 1999-Ohio-264 (where records sought have no relation to crime or case, State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, is not applicable). 326 State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 355, 1997-Ohio-271. 327 See Chapter Three: C. Waiver of an Exception. 328 See Chapter Three: E. Exceptions Enumerated in the Public Records Act - (g) trial preparation records; see also, Chapter Six: A. CLEIRs. 329 State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 354-55, 1997-Ohio-271. 330 Gilbert v. Summit County, 104 Ohio St.3d 660, 661-62, 2004-Ohio-7108. 331 Gilbert v. Summit County, 104 Ohio St.3d 660, 661-62, 2004-Ohio-7108. 332 State ex rel. TP Mech. Contractors, Inc. v. Franklin Cty. Bd. Of Comm’rs, 10th Dist. No. 09AP-235, 2009-Ohio-3614. 333 R. Evid. 803(8), 1005; State of Ohio v. Curti (7th Dist.), 153 Ohio App.3d 183, 2003-Ohio-3286, at ¶15. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records (2004), noted that “trial courts have discretion to admit or exclude evidence.” 334 She stated more directly, “trial courts have discretion to impose sanctions for discovery violations, one of which could be exclusion of that evidence,” and concluded that, “even though a party may effectively circumvent a discovery deadline by acquiring a document through a public records request, it is the trial court that ultimately determines whether those records will be admitted in the pending litigation.” 335

d. Prosecutor and Government Attorney Files (Trial Preparation and Work Product) R.C. 149.43(A)(1)(g) excepts from release any “trial preparation records,” which are defined as “any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.” 336 Documents that a public office obtains as a litigant through discovery will ordinarily qualify as “trial preparation records,” 337 as would the material compiled for a specific criminal proceeding by a prosecutor or the personal trial preparation by a public attorney. 338 Attorney trial notes and legal research are “trial preparation records,” which may be withheld from disclosure. 339 Virtually everything in a prosecutor’s file during an active prosecution is either material compiled in anticipation of a specific criminal proceeding or personal trial preparation of the prosecutor, and is therefore exempt from public disclosure as “trial preparation” material. 340 However, unquestionably nonexempt materials do not transform into “trial preparation records” simply by virtue of being held in a prosecutor’s file. 341 For example, routine offense and incident reports are subject to release while a criminal case is active, including those in the files of the prosecutor. 342 The common law attorney work product doctrine also protects a broader range of materials that attorney-client privilege. 343 The doctrine provides a qualified privilege, 344 and is incorporated into Rule 26 of the Ohio and Federal Rules of Civil Procedure. Ohio Civ.R. 26(B)(3) protects material “prepared in anticipation of litigation or for trial.” The rule protects the “notes or documents containing the mental impressions, conclusions, opinions, or legal theories of its attorney or other representative concerning the litigation.” 345

e. Settlement Agreements and Other Contracts Where a governmental entity is party to a settlement, the trial preparation records exception will not apply to the settlement agreement. 346 But the parties are entitled to redact any information within the settlement agreement that is subject to the attorney-client privilege. 347 Any provision

334

Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, at ¶11. Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, at ¶11. 336 R.C. 149.43(A)(4). 337 Cleveland Clinic Found. v. Levin, 2008 Ohio 6197, at ¶10. 338 State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 431-32 (1994). 339 State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 384-85, 1998-Ohio-290. 340 State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 432; State ex rel. Towler v. O’Brien (10th Dist.), 2005-Ohio-363, at ¶¶14-16. 341 State ex. Rel. WLWT-TV-5 v. Leis (1997), 77 Ohio St.3d 357, 361, 1997-Ohio-273. See also State ex rel. Fasul-Bey v. Onunwor, 94 Ohio St.3d 119, 120, 2002-Ohio-67 (finding that a criminal defendant was entitled to immediate release of initial incident reports). 342 State ex rel. Fasul-Bey v. Onunwor, 94 Ohio St.3d 119, 120, 2002-Ohio-67 (finding that a criminal defendant’s limitation to discovery does not apply to initial incident reports, which are subject to immediate release upon request); State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 435. 343 Schaefer, Inc. v. Garfield Mitchell Agency, Inc. (1992), 82 Ohio App.3d 322; Hickman v. Taylor (1947), 329 U.S. 495. 344 Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 2010-Ohio-4469, at ¶55. 345 Id. at ¶ 54, 60. 346 State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, at ¶¶11-21; State ex rel. Kinsley v. Berea Bd. of Educ. (8th Dist. 1990), 64 Ohio App.3d 659, 663; State ex rel. Sun Newspapers v. City of Westlake Bd. of Educ. (8th Dist. 1991), 76 Ohio App.3d 170, 172-73. 347 State ex rel. Sun Newspapers v. City of Westlake Bd. of Educ. (8th Dist. 1991), 76 Ohio App.3d 170, 173; see also Chapter Three, Section G “Exceptions Created by Other Laws – 1.a. Attorney-Client Privilege.” 335

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records within the agreement that specifies it shall be kept confidential is void and unenforceable because a contractual provision will not supersede Ohio public records law. 348

2. Municipal Income Tax Returns 349 The issue of whether municipal income tax returns and W-2 federal tax forms are public records comes up frequently. Any information gained as a result of returns, investigations, hearings or verifications is confidential and no person may disclose the information except: (1) in accordance with a judicial order; (2) in the performance of that person’s official duties; or (3) as a part of the official business of the municipal corporation. 350 Information obtained from municipal tax returns is confidential. 351 One Attorney General Opinion found that W-2 federal tax forms prepared and maintained by a township as an employer are public records, but that W-2 forms filed as part of a municipal income tax return are confidential. 352 W-4 forms are confidential pursuant to 26 U.S.C. 6103(b)(2)(A) as “return information,” which includes “data with respect to the determination of the existence of liability (or the amount thereof) of any person for any tax.” Finally, release of municipal income tax information to the Auditor of State is permissible for purposes of facilitating an audit. 353

3. Trade Secrets Trade secrets are defined in R.C. 1333.61(D) and include “any information, including . . . any business information or plans, financial information, or listing of names” that: 1. Derives actual or potential independent economic value from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and 2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” 354 “An entity claiming trade secret status bears the burden to identify and demonstrate that the material is included in categories of protected information under the statute and additionally must take some active steps to maintain its secrecy.” 355 The Ohio Supreme Court has adopted the following factors in analyzing a trade secret claim: “(1) the extent to which the information is known outside the business; (2) the extent to which it is known to those inside the business, i.e., by the employees; (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information; (4) the savings effected and the value to the holder in having the information as against competitors; (5) the amount of effort or money expended in obtaining and developing the information; and (6) the amount of time and expense it would take for others to acquire and duplicate the information.” 356 The maintenance of secrecy is important, but does not require that the trade secret be completely unknown to the public in its entirety. If parts of the trade secret are in the public domain, but the value

348

Keller v City of Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, at ¶ 20; State ex rel. Findley Publ’g Co. v. Hancock County Bd. of Comm’rs, 80 Ohio St.3d 134, 136-37, 1997-Ohio-353; see generally Chapter Three: G. “Exceptions Created by Other Laws – 8. Contractual Confidentiality.” 349 See Chapter Six: B. “Application to Employment Records.” 350 R.C. 718.13; 26 U.S.C. § 6103; see also City of Cincinnati v. Grogan (1st Dist. 2001), 141 Ohio App.3d 733, 755 (finding that, under Cincinnati Municipal Code, the city’s use of tax information in a nuisance-abatement action constituted an official purpose for which disclosure is permitted). 351 R.C. 718.13; see also Reno v. City of Centerville, 2nd Dist. No. 20078, 2004-Ohio-781. 352 1992 Ohio Op. Att’y Gen. No. 013. 353 1992 Ohio Op. Att’y Gen. No. 010. 354 R.C. 1333.61(D) (adopts the Uniform Trade Secrets Act); see also R.C. 149.43(A)(1)(m); R.C. 149.43(A)(5). 355 State ex rel. Besser v. Ohio St. Univ., 89 Ohio St.3d 396, 400, 2000-Ohio-207. (“Besser II”) 356 State ex rel. Besser v. Ohio St. Univ., 89 Ohio St.3d 396, 399-400, 2000-Ohio 207 (citation omitted). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records of the trade secret derives from the parts being taken together with other secret information, then the trade secret remains protected under Ohio law. 357 Trade secret law is underpinned by “the protection of competitive advantage in private, not public, business.” 358 However, the Ohio Supreme Court has held that certain governmental entities can have trade secrets in limited situations. 359 Signed non-disclosure agreements do not create trade secret status for otherwise publicly disclosable documents. 360 An in camera inspection may be necessary to determine if disputed records contain trade secrets. 361

4. Juvenile Records Although it is a common misconception, there is no Ohio law that categorically excludes all juvenile records from public records disclosure. 362 While juvenile records maintained by the juvenile court typically are not available for public inspection and copying, 363 juvenile records maintained by law enforcement agencies, in general, are treated no differently than adult records, including records identifying a juvenile suspect, victim, or witness. 364 Thus, law enforcement agencies are not typically permitted by law to redact information about juveniles from their records based simply on the juvenile’s age. Further, most information held by local law enforcement offices may be shared with other law enforcement agencies and local schools. When analyzing a public records request for juvenile records, a law enforcement agency must evaluate the applicability of the confidential law enforcement investigatory records exception. 365 In other words, law enforcement agencies should treat the suspect, victim, witness, or source as it would an adult in the same role, e.g., redact a suspect’s identity only if the suspect is “uncharged.” 366 Additionally, the office must assess whether any state or federal laws require redaction of some or all information. For instance, one important state law exception applies after a juvenile has been fingerprinted and photographed on the basis of a covered arrest or custody. 367 Once that happens, the fingerprints, photographs, and other records relating to the arrest or custody must not be disclosed, except as provided in the governing statute. 368 Another state law pertains to information 357

State ex rel. Besser v. Ohio St. Univ., 89 Ohio St.3d 396, 399-400, 2000-Ohio 207. State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 264. 359 State ex rel. Besser v. Ohio St. Univ., 87 Ohio St.3d 535, 543, 2000-Ohio-475 (“Besser I”) (finding that a public entity can have its own trade secrets); State ex rel. Lucas County Bd. of Comm’rs v. Ohio EPA, 88 Ohio St.3d 166, 171, 2000-Ohio-282; State ex rel. Plain Dealer v. Ohio Dept. of Ins., 80 Ohio St.3d 513, 524-25, 1997-Ohio-75; compare State ex rel. Gannett Satellite Info. Network v. Shirey, 76 Ohio St.3d 1224, 1224-25, 1997Ohio-206 (finding that resumes are not trade secrets of a private consultant); State ex rel. Rea v. Ohio Dept. of Ed., 81 Ohio St.3d 527, 533, 1998-Ohio334 (finding that proficiency tests are public record after they have been administered; but compare State ex rel. Perrea v. Cincinnati Pub. Sch., 123 Ohio St.3d 410, 2009-Ohio-4762, at ¶¶ 32-33 (holding that a public school had proven that certain semester examination records met the statutory definition of “trade secret” in R.C. 1333.61(D)). 360 State ex rel. Plain Dealer v. Ohio Dept. of Ins., 80 Ohio St.3d 513, 527, 1997-Ohio-75. 361 State ex rel. Allright Parking of Cleveland, Inc. v. Cleveland (1992), 63 Ohio St.3d 772, 776 (finding that an in camera inspection may be necessary to determine whether disputed records contain trade secrets); State ex rel. Lucas County Bd. of Comm’rs v. Ohio EPA, 88 Ohio St.3d 166, 2000-Ohio282; State ex rel. Besser v. Ohio St. Univ., 89 Ohio St.3d 396, 404-405, 2000-Ohio-207 (“Besser II”) (following an in camera inspection, the Court held that a University’s business plan and memoranda concerning a medical center did not constitute “trade secrets”). 362 1990 Ohio Op. Att’y Gen. No. 101. 363 1990 Ohio Op. Att’y Gen. No. 101; see also Juv. R of Civ. Proc. 37(B); but compare State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga County Ct. of Common Pleas (1995), 73 Ohio St.3d 19, 21-22 (determining that the release of a transcript of a juvenile contempt proceeding was required when proceedings were open to the public). 364 1987 Ohio Op. Att’y Gen. No. 010; see also 1990 Ohio op. Att’y Gen. No. 099 (opining that a local board of education may request and receive information regarding student drug or alcohol use from the public records of law enforcement agencies). 365 See Chapter Six: A. “CLEIRs.” 366 R.C. 149.43(A)(2)(a). 367 R.C. 2151.313(A)(3) (stating that “[t]his section does not apply to a child to whom either of the following applies: (a) The child has been arrested or otherwise taken into custody for committing, or has been adjudicated a delinquent child for committing, an act that would be a felony if committed by an adult or has been convicted of or pleaded guilty to committing a felony. (b) There is probable cause to believe that the child may have committed an act that would be a felony if committed by an adult.”). 368 R.C. 2151.313; State ex rel. Carpenter v. Chief of Police (Sep. 17, 1992), 8th Dist. No. 62482, unreported (noting that “other records” may include the juvenile’s statement or an investigator’s report if they would identify the juvenile). 358

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records related to alleged child abuse or neglect. The Ohio Supreme Court has held that the state law protecting the confidentiality of a child abuse report and the information contained therein applies to the records of law enforcement. 369 Other examples of state law exceptions to public disclosure of juvenile records include: (1) records of social, mental and physical examinations conducted pursuant to a juvenile court order; 370 (2) records held by the Department of Youth Services pertaining to juveniles in its custody; 371 (3) reports regarding allegations of child abuse; 372 (4) sealed or expunged juvenile records; 373 (5) juvenile probation records; 374 and (6) certain records of children’s services agencies. 375 Federal laws prohibit disclosure of records associated with federal juvenile delinquency proceedings. 376 Additionally, these laws restrict the disclosure of fingerprints and photographs of a juvenile found guilty in federal delinquency proceedings of committing a crime that would have been a felony if the juvenile were prosecuted as an adult. 377

5. Social Security Numbers 378 Social Security Numbers (SSNs) should be redacted before the disclosure of public records, including court records. 379 The Ohio Supreme Court has held that while the federal Privacy Act (5 U.S.C. § 552a) does not expressly prohibit release of one’s SSN, the Act does create an expectation of privacy as to the use and disclosure of the SSN. 380 Any federal, state, or local government agency that asks individuals to disclose their SSNs must advise the person: (1) whether that disclosure is mandatory or voluntary and, if mandatory, under what authority the SSN is solicited; and (2) what use will be made of it. 381 In short, a SSN can only be disclosed if an individual has been given prior notice that the SSN will be publicly available.

369

State ex rel. Beacon Journal Publ’g Co.l v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, at ¶¶44-45 (finding that information obtained in connection with allegations of child abuse or neglect may be redacted from police files, including the incident report, pursuant to a valid catch-all exception in R.C. 2151.421(H)). 370 Juv. R. of Civ. Proc. 32(B). 371 R.C. 5139.05(D). 372 R.C. 2151.421(H)(1); State ex rel. Beacon Journal Publ’g Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, at ¶¶44-45. 373 R.C. 2151.358; see also Chapter Six: D. “Court Records.” 374 R.C. 2151.14. 375 R.C. 5153.17. 376 18 U.S.C. §§ 5038(a), 5038(c), 5038(e)of the Federal Juvenile Delinquency Act (18 U.S.C. §§ 5031-5042). (these records can be accessed by authorized persons and law enforcement agencies). 377 See 18 U.S.C. § 5038(d). 378 See Chapter Six: B. “Application to Employment Records.” 379 State ex rel. Office of Montgomery County Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, at ¶18 (finding that the clerk of courts correctly redacted SSNs from criminal records before disclosure); State ex rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952, at ¶25 (noting that SSNs should be removed before releasing court records); see also State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, at ¶25 (finding that the personal information of jurors was used only to verify identification, not to determine competency to serve on the jury, and SSNs, telephone numbers, driver’s license numbers, may be redacted); State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53, 1998Ohio-444 (stating that “there is nothing to suggest that Wadd would not be entitled to public access […] following prompt redaction of exempt information such as Social Security Numbers”); State ex rel. Beacon Journal Publ’g Co. v. Kent State, 68 Ohio St.3d 40, 43, 1993-Ohio-146 (determining, on remand, that the Court of appeals may redact confidential information, such as SSNs); 2004 Ohio Op. Att’y Gen. No. 045 (opining that court files may be redacted to conceal SSNs and other information the release of which would violate constitutional right to privacy; Lambert v. Hartman (6th Cir. 2008), 517 F.3d 433, 445 (determining that, as a policy matter, a clerk of court’s decision to allow public internet access to people’s SSNs was “unwise”). 380 State ex rel. Beacon Journal Publ’g v. City of Akron, 70 Ohio St.3d 605, 607, 1994-Ohio-6 (determining that city employees had an expectation of privacy of their SSNs such that they must be redacted before release of public records to newspapers); compare State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 378, 1996-Ohio-214 (finding that SSNs contained in 911 tapes are public records subject to disclosure); but see R.C. 4931.49(E), 4931.99(E) (providing that information from a database that serves public safety answering point of 911 system may not be disclosed); 1996 Ohio Op. Att’y Gen No. 034 (opining that a county recorder is under no duty to obliterate SSN before making a document available for public inspection where the recorder presented with the document was asked to file it). 381 Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896 (5 U.S.C. § 552a (West 2000)). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records However, the Ohio Supreme Court has ruled that 911 tapes must be made immediately available for public disclosure 382 without redaction, even if the tapes contain SSNs. 383 The Court explained that there is no expectation of privacy when a person makes a 911 call. Instead, there is an expectation that the information will be recorded and disclosed to the public. 384 Similarly, the Ohio Attorney General has opined that there is no expectation of privacy in official documents containing SSNs. 385 The Ohio Supreme Court’s interpretation of Ohio law with respect to release and redaction of SSNs is binding on public offices within the state. However, a narrower view expressed by a 2008 federal appeals court decision 386 is worth noting, as it may impact future Ohio Supreme Court opinions regarding the extent of a person’s constitutional right to privacy in his or her SSN. In Lambert v. Hartman, the U.S. Sixth Circuit Court of Appeals looked to its own past decisions to find a constitutional privacy right in personal information in only two situations: (1) where release of personal information could lead to bodily harm, 387 and (2) where the information released was of a sexual, personal, and humiliating nature. 388 The Court explained that it would only balance an individual’s right to control the nature and extent of information released about that individual against the government’s interest in disseminating the information when a fundamental liberty interest is involved. 389 The interest asserted in Lambert - protection from identity theft and the resulting financial harm - was found not to implicate a fundamental right, especially when compared to the fundamental interests found in earlier cases; i.e., preserving the lives of police officers and their family members from “a very real threat” 390 by a violent gang and withholding the “highly personal and extremely humiliating details” 391 of a rape.

6. Student Records 392 The federal Family Education Rights and Privacy Act of 1974 (FERPA) 393 prohibits educational institutions from releasing a student’s “education records” without the written consent of the eligible student 394 or his or her parents, except as permitted by the Act. 395 “Education records” are records directly related to a student that are maintained by an education agency or institution or by a party acting for the agency or institution. 396 The term encompasses records such as school transcripts, attendance records, and student disciplinary records. 397 A record is considered to be “directly related” to a student if it contains “personally identifiable information.” The latter term is defined broadly: it covers not only obvious identifiers such as student and family member names, addresses, and Social Security Numbers, but also personal 382

State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 105 Ohio St.3d 172, 2005-Ohio-685, at ¶5; State ex rel Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 377, 1996-Ohio-214; but see R.C. 4931.49(E), 4931.99(E) (providing that information from a database that serves public safety answering point of 911 system may not be disclosed). 383 State ex rel Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 377, 1996-Ohio-214. 384 State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 105 Ohio St.3d 172, 2005-Ohio-685; State ex rel Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 1996-Ohio-214. 385 1996 Ohio Op. Att’y Gen. No. 034 (opining that the federal Privacy Act does not require county recorders to redact SSNs from copies of official records); but see R.C. 149.45(B)(1) (specifying that no public office shall make any document containing an individual’s SSN available on the internet without removing the number from that document). 386 Lambert v. Hartman (6th Cir. 2008), 517 F.3d 433, 445. 387 Kallstrom v. City of Columbus (6th Cir. 1998), 136 F.3d 1055. 388 Bloch v. Ribar (6th Cir. 1998), 156 F.3d 673, 686-87 (determining that a sheriff’s publication of details of a rape implicated the victim’s right to be free from governmental intrusion into matters touching on sexuality and family life, and permitting such an instruction would be to strip away the very essence of her personhood). 389 Lambert v. Hartman (6th Cir. 2008), 517 F.3d 433, 440. 390 Lambert v. Hartman (6th Cir. 2008), 517 F.3d 433, 441 citing Kallstrom v. City of Columbus (6th Cir. 2008), 136 F.3d 1055, 1063. 391 Bloch v. Ribar (6th Cir. 1998), 156 F.3d 673, 676. 392 Also see School Records in Chapter Six: B. Employment Records. 393 20 U.S.C. § 1232g. 394 34 C.F.R. § 99.3: “Eligible student” means a student who has reached 18 years of age or is attending an institution of post-secondary education. 395 34 C.F.R. § 99.30. 396 34 C.F.R. § 99.3. 397 United States v. Miami Univ. (6th Cir. 2002), 294 F.3d 797, 802-03; see also United States v. Miami Univ. (S.D. Ohio 2000), 91 F. Supp.2d 1132. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records characteristics or other information that would make the student’s identity easily linkable. 398 In evaluating records for release, an institution must consider what the records requester already knows about the student to determine if that knowledge, together with the information to be disclosed, would allow the requester to ascertain the student’s identity. The federal FERPA law applies to all students, regardless of grade level. In addition, Ohio has adopted laws specifically applicable to public school students in grades K-12. 399 Those laws provide that, unless otherwise authorized by law, no public school employee is permitted to release or permit access to personally identifiable information – other than directory information – concerning a public school student without written consent of the student’s parent, guardian, or custodian if the student is under 18, or of the student if the student is 18 or older. 400 “Directory information” is one of several exceptions to the requirement that an institution obtain written consent requirement prior to disclosure. “Directory information” is “information…that would not generally be considered harmful or an invasion of privacy if disclosed.” 401 It includes a student’s name, address, telephone listing, date and place of birth, major field of study, participation in official recognized activities and sports, weight and height of members of athletic teams, dates of attendance, date of graduation, and awards achieved. Pursuant to federal law, post-secondary institutions designate what they will unilaterally release as directory information. For K-12 students, Ohio law leaves that designation to each school district board of education. Institutions at all levels must notify parents and eligible students and give them an opportunity to opt out of disclosure of their directory information. 402

7. Infrastructure & Security Records In 2002, the Ohio legislature enacted an anti-terrorism bill. Among other changes to Ohio law, the bill created two new categories of records that are exempt from mandatory public disclosure: “infrastructure records” and “security records.” 403 Other state and federal 404 laws may create exceptions for the same or similar records.

a. Infrastructure Records An “infrastructure record” is any record that discloses the configuration of a public office’s “critical systems,” such as its communications, computer, electrical, mechanical, ventilation, water, plumbing, or security systems. 405 Simple floor plans or records showing the spatial relationship of the public office are not infrastructure records. 406 Infrastructure records may be disclosed for purposes of construction, renovation, or remodeling of a public office without waiving the exempt status of that record. 407

b. Security Records A “security record” is “any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage or to prevent, mitigate, or respond to acts of terrorism.” 408 Security records may be disclosed for purposes of 398

34 C.F.R. § 99.3. R.C. 3319.321. R.C. 3319.321(B). 401 34 C.F.R. § 99.3. 402 34 C.F.R. § 99.37. 403 R.C. 149.433. 404 E.g., 6 U.S.C. §§ 131 et seq., 6 C.F.R. 29 (providing that the federal Homeland Security Act of 2002 prohibits disclosure of certain “critical infrastructure information” shared between state and federal agencies). 405 R.C. 149.433(A)(2). 406 R.C. 149.433(A)(2). 407 R.C. 149.433(C). 408 R.C. 149.433(A)(3)(a)-(b); State ex rel Bardwell v. Cordray (10th Dist.), 2009-Ohio-1265, at ¶¶68-70 (applying the statute). 399 400

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records construction, renovation, or remodeling of a public office without waiving the exempt status of that record. 409

8. Contractual Confidentiality Parties to a public contract, including settlement agreements 410 and collective bargaining agreements, cannot nullify the Ohio Public Records Act’s guarantee of public access to public records. 411 Nor can an employee handbook confidentiality provision alter the status of public records. 412 In other words, a contract cannot nullify or restrict the public’s access to public records. 413 Absent a statutory exception, a “public entity cannot enter into enforceable promises of confidentiality with respect to public records.” 414

9. Protective Orders & Sealed/Expunged Court Records 415 When the release of court records would prejudice the rights of the parties in an ongoing criminal or civil proceeding, 416 a court may impose a protective order prohibiting release of the records. 417 Similarly, where court records have been properly expunged or sealed, they are not available for public disclosure. 418 Even absent statutory authority, trial courts, “in unusual and exceptional circumstances,” have the inherent authority to seal court records. 419 When exercising this authority, however, courts should balance the individual’s privacy interest against the government’s legitimate need to provide public access to records of criminal proceedings. 420

10. Grand Jury Records Ohio Criminal Rule 6 provides that “(E) [d]eliberations of the grand jury and the vote of any grand juror shall not be disclosed,” and provides for withholding of other specific grand jury matters by certain persons under specific circumstances. Materials covered by Criminal Rule 6 include transcripts, voting records, subpoenas, and the witness book. 421 In contrast to those items that 409

R.C. 149.433(C). Chapter Three: G. “Exceptions Created by Other Laws” -1.e. “Settlement Agreements and Other Contracts.” 411 Keller v. City of Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, at ¶23 (stating that “[a]ny provision in a collective bargaining agreement that establishes a schedule for the destruction of public record is unenforceable if it conflicts with or fails to comport with all the dictates of the Public Records Act.”); State ex rel. Dispatch Printing Co. v. City of Columbus, 90 Ohio St.3d 39, 40-41, 2000-Ohio-8; State ex rel. Findlay Publ’g Co. v. Hancock County Bd. of Comm’rs., 80 Ohio St.3d 134, 137, 1997-Ohio-353; Toledo Police Patrolman’s Ass’n v. City of Toledo (6th Dist. 1994), 94 Ohio App.3d 734, 739; State ex rel. Kinsley v. Berea Bd. of Educ. (1990), Cuayhoga App. No. 56817, 64 Ohio App.3d 659, 663; Bowman v. Parma Bd. of Educ. (8th Dist. 1988), 44 Ohio App.3d 169, 172; State ex rel. Dwyer v. City of Middletown (12th Dist. 1988), 52 Ohio App.3d 87, 91; State ex rel. Toledo Blade Co. v. Telb (1990), 50 Ohio Misc. 2d 1, 8; State ex rel. Sun Newspapers v. City of Westlake Bd. of Educ. (8th Dist. 1991), 76 Ohio App.3d 170, 173. 412 State ex rel. Russell v. Thomas, 85 Ohio St.3d 83, 85, 1999-Ohio-435. 413 State ex rel. Gannett Satellite Info. Network v. Shirey, 76 Ohio St.3d 1224, 1997-Ohio-206. 414 State ex rel. Findlay Publ’g Co. v. Hancock County Bd. of Comm’rs., 80 Ohio St.3d 134, 137, 1997-Ohio-353; State ex rel. Allright Parking of Cleveland, Inc. v. Cleveland (1992), 63 Ohio St.3d 772, 776 (reversing and remanding on grounds that the court failed to examine records in camera to determine the existence of trade secrets); State ex rel. Nat’l Broadcasting Co., Inc. v. City of Cleveland (8th Dist. 1992), 82 Ohio App.3d 202. 415 Chapter Six: D. “Court Records.” 416 State ex rel. Vindicator Printing Co. v. Watkins (1993), 66 Ohio St.3d 129, 137-38 (prohibiting disclosure of pretrial court records prejudicing rights of criminal defendant) (overruled on other grounds); Adams v. Metallica (1st Dist. 2001), 143 Ohio App.3d 482, 493-95 (applying balancing test to determine whether prejudicial record should be released where filed with the court); but see State ex rel. Highlander v. Ruddick, 103 Ohio St.3d 370, 2004-Ohio-4952, at ¶¶9-20 (pending appeal from court order unsealing divorce records does not preclude writ of mandamus claim). 417 State ex rel. Cincinnati Enquirer v. Dinkelacker (1st Dist. 2001), 144 Ohio App.3d 725, 730-33 (finding that a trial judge was required to determine whether release of records would jeopardize defendant’s right to a fair trial). 418 State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, at ¶4 (“Winkler III”)(affirming trial court’s sealing order per R.C. 2953.52); Dream Fields, LLC v. Bogart (1st Dist.), 175 Ohio App.3d 165, 2008-Ohio-152, at ¶5 (stating that “[u]nless a court record contains information that is excluded from being a public record under R.C. 149.43, it shall not be sealed and shall be available for public inspection. And the party wishing to seal the record has the duty to show that a statutory exclusion applies […] [j]ust because the parties have agreed that they want the records sealed is not enough to justify the sealing.”); see also Chapter Six D. “Court Records.” 419 Pepper Pike v. Doe (1981), 66 Ohio St.2d 374, 376; but compare State ex rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952, at ¶1 (determining that divorce records were not properly sealed when an order results from “unwritten and informal court policy”). 420 Pepper Pike v. Doe (1981), 66 Ohio St.2d 374, at ¶2 of syllabus. 421 State ex rel. Beacon Journal v. Waters (1993), 67 Ohio St.3d 321; Fed Crim. R. 6. 410

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records document the deliberations and vote of a grand jury, evidentiary documents that would otherwise be public records remain public records, regardless of their having been submitted to the grand jury. 422

11. Copyright Prohibitions to Disclosure Public offices may be faced with the quandary of whether to release copyrighted materials in response to public records requests. Federal copyright law is designed to protect “original works of authorship,” which may exist in one of several specified categories. 423 Specifically, works of authorship include the following categories of materials: (1) literary works; (2) musical works (including any accompanying words); (3) dramatic works (including any accompanying music); (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 424 Ohio’s Public Records Act does not contain any exceptions preventing a public office from responding to a valid public records request for copyrighted materials. However, federal copyright law provides certain copyright owners the exclusive right of reproduction, 425 which means public offices could expose themselves to legal liability if they reproduce copyrighted public records in response to a public records request. If a public record sought by a requestor is copyrighted material that the public office does not possess the right to reproduce or copy via a copyright ownership or license, the public office is not typically authorized to make copies of this material under federal copyright law. 426 However, there are some exceptions to this rule. For example, in certain situations, the copying of a portion of a copyrighted work may be permitted. 427 One possible solution to responding to requests for copyrighted material is for a public office to make the copyrighted material available for inspection rather than reproducing it.

12. EMS Run Sheets When a run sheet created and maintained by a county emergency medical services (EMS) organization documents treatment of a living patient, the EMS organization may redact information that pertains to the patient’s medical history, diagnosis, prognosis, or medical condition. 428 The organization may not redact patients’ names, addresses, and other non-medical personal information as part of the medical records exception. 429

13. FOIA Does Not Apply to Ohio Public Offices The federal Freedom of Information Act (FOIA) is a federal law that does not apply to state or local agencies or officers. 430 A request for government records from a state or local agency in Ohio is governed by the Ohio Public Records Act. Requests for records from a federal office located in Ohio (or anywhere else in the country or the world) are governed by FOIA. 431

422

State ex rel. Dispatch v. Morrow Co. Prosecutor, 105 Ohio St.3d 172, 2005-Ohio-685, at ¶5 citing State ex rel. Cincinnati Enquirer v. Hamilton County (1996), 75 Ohio St.3d 374, 378; State ex rel. Gannett Satellite Info. Network v. Petro (1997), 80 Ohio St.3d 261, 267. 423 17 U.S.C. § 102(a). 424 17 U.S.C. § 102(a)(1)-(8). 425 17 U.S.C. § 102(a). 426 Because of the complexity of copyright law and the fact-specific nature of this area, public bodies should resolve public records related copyright issues with their legal counsel. 427 See 17 U.S.C. § 107; Harper & Row, Publishers, Inc. v. Nation Enterprises (1985), 471 U.S. 539, 560-61 (providing that, in determining whether the intended use of the protected work is “fair use,” a court must consider these facts, which are not exclusive: (1) the purpose and character of the use, including whether the intended use is commercial or for nonprofit educational purposes; (2) the nature of the protected work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the most important factor: the effect of the intended use upon the market for or value of the protected work). 428 1999 Ohio Op. Att’y Gen. No. 006. 429 1999 Ohio Op. Att’y Gen. No. 006. 430 State ex rel. WBNS-TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, at ¶35; State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, at ¶32. 431 5 U.S.C. § 552. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Three: Exceptions to the Required Release of Public Records 14. Driver’s Privacy Protection An authorized recipient of personal information about an individual that the bureau of motor vehicles obtained in connection with a motor vehicle record may redisclose the personal information only for certain purposes. 432

432

R.C. 4501(C), O.A.C. 4501:1-12-02.

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The Ohio Public Records Act Chapter Four: Enforcement and Liabilities IV. Chapter Four: Enforcement and Liabilities The Ohio Public Records Act is a “self-help” statute, in that a person who believes that the Act has been violated must independently pursue a remedy, rather than asking a public official such as the Ohio Attorney General to initiate legal action on his or her behalf. If a public office or person responsible for public records fails to produce requested records, or otherwise fails to comply with the requirements of division (B) of the Ohio Public Records Act, the requester can file a lawsuit to seek a writ of mandamus 433 to enforce compliance, and may apply for various sanctions. This section discusses the basic aspects of a mandamus suit and the types of monetary awards available.

A. Public Records Act Statutory Remedies 1. Parties A person allegedly “aggrieved by” a public office’s failure to comply with Division (B) of the Ohio Public Records Act may file an action in mandamus 434 against the public office or any person responsible for the office’s public records. 435 The person who files the suit is called the “relator,” and the named public office or person responsible for the records is called the “respondent.”

2. Where to File The relator can file the mandamus action in any one of three courts: the common pleas court of the county where the alleged violation occurred, the court of appeals for the appellate district where the alleged violation occurred, or the Ohio Supreme Court. 436 If a relator files in the Supreme Court, the Court may refer the case to mediation counsel for a settlement conference. 437 When an official responsible for records has denied a public records request, no administrative appeal to the official’s supervisor is necessary before filing a mandamus action in court. 438

3. When to File Due to the recent addition of the civil forfeiture provisions, the likely statute of limitations for filing a public records mandamus action is within ten years after the cause of action accrues. 439 However, if the respondent can show that unreasonable and inexcusable delay in asserting a known right cause material prejudice to the respondent, the defense of laches may apply. 440

4. Requirements to Prevail To be entitled to a writ of mandamus, the relator must prove a clear legal right to the requested relief and that the respondent had a clear legal duty to perform the requested act. 441 In a public records 433

“Mandamus” here means a court command to a governmental office to correctly perform a mandatory function. Black’s Law Dictionary (7th ed. 1999) 973. 434 R.C. 149.43(C)(1); State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶12 (providing that “[m]andamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio’s Public Records Act”). 435 State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 174 (finding that mandamus does not have to be brought against the person who actually withheld the records or committed the violation; it can be brought against any “person responsible” for public records in the public office); State ex rel. Mothers Against Drunk Drivers v. Gosser (1985), 20 Ohio St.3d 30, at ¶2 syllabus (stating that “[w]hen statutes impose a duty on a particular official to oversee records, that official is the ‘person responsible’ under” the Public Records Act); see also Chapter One: B. “Public Office –[A private Entity, Even if not a ‘Public Office,’ Can Be ‘A Person Responsible for Public Records’].” 436 R.C. 149.43(C)(1). 437 S.Ct. Prac. R. XIV, § 6 (providing that a Court may, sua sponte or on motion by a party, refer cases to mediation counsel and, unless otherwise ordered by the Court, this does not alter the filing deadlines for the action). 438 State ex rel. Multimedia, Inc. v. Whalen (1990), 48 Ohio St.3d 41, 42 (overruled on other grounds). 439 R.C. 2305.14. 440 State ex rel. Carver v. Hull (1994), 70 Ohio St.3d 570, 577; State ex rel. Moore v. Sanders (1981), 65 Ohio St.2d 72, 74. 441 State ex rel. Scanlon v. Deters (1989), 45 Ohio St.3d 376, 377 (overruled on other grounds); State ex rel. Fields v. Cervenik (8th Dist.), 2006-Ohio3969, at ¶4. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Four: Enforcement and Liabilities mandamus, this usually includes showing that, when the requester made the request, she specifically described the records being sought, 442 and specified in the mandamus action the records withheld or other failure to comply. 443 A person is not entitled to file a mandamus action to request public records unless a prior request for those records has already been made and was denied. 444 Only those particular records that were requested from the public office can be litigated in the mandamus action. 445 If these requirements are met, the respondent then has the burden of proving in court that any items withheld are exempt from disclosure, 446 and of countering any other alleged violations of R.C. 149.43(B). The court, if necessary, will review in camera (in private) the materials that were withheld or redacted. 447 To the extent any doubt or ambiguity exists as to the duty of the public office, the public records law will be liberally interpreted in favor of disclosure. 448 Unlike most mandamus actions, a relator in a statutory public records mandamus action need not prove a lack of adequate remedy at law. 449 Also note that, if a respondent provides requested records to the relator after the filing of a public records mandamus action, all or part of the case may be rendered moot, or concluded. 450 However, even if the case is rendered moot, 451 the relator may still be entitled to attorney fees. 452

B. Liabilities of the Public Office In a properly filed mandamus action, if a court determines that the public office or the person responsible for public records failed to comply with an obligation contained in R.C. 149.43(B), the relator shall be entitled to an award of all court costs, 453 and may receive an award of attorney fees and/or statutory damages, as detailed below.

1. Attorney Fees If the court renders a judgment ordering the respondent to comply with R.C. 149.43(B), then the court may award reasonable attorney fees. 454 An award of attorney fees upon finding a violation is not mandatory, 455 and litigation expenses, other than court costs, are not recoverable at all. 456 A court shall award reasonable attorney fees if either: (1) the public office failed to respond to the public records request in accordance with the time allowed under R.C. 149.43(B); 457 or (2) the public office 442

State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶17; State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006Ohio-6365, at ¶26 (stating that “it is the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue.”); State ex rel. Zauderer v. Joseph (10th Dist. 1989), 62 Ohio App.3d 752. 443 State ex rel. Citizens for Envtl. Justice v. Campbell, 93 Ohio St.3d 585, 586, 2001-Ohio-1617. 444 State ex rel. Ross v. Vivo (7th Dist.), 2008-Ohio-4819, at ¶5. 445 State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, at ¶14 (stating that “R.C. 149.43(C) requires a prior request as a prerequisite to a mandamus action.”); State ex rel. Bardwell v. Cordray (10th Dist.), 2009-Ohio-1265, at ¶5 (finding that “[t]here can be no ‘failure’ of a public office to make a public record available ‘in accordance with division (B),’ without a request for the record under division (B).”). 446 Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, at ¶6 (citing State ex rel. Nat’l Broadcasting Co. v. City of Cleveland (1988), 38 Ohio St.3d 79 (“NBC I”). 447 State ex rel. Besser v. Ohio St. Univ., 89 Ohio St.3d 396, 400, 2000-Ohio-207. (“Besser II”); State ex rel. Seballos v. SERS, 70 Ohio St.3d 667, 1994-Ohio-80; State ex rel. Nat’l Broadcasting Co. v. City of Cleveland (1988), 38 Ohio St.3d 79. 448 State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶17; State ex rel. Carr v. City of Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, at ¶29 (finding that, when assessing a public records mandamus claim, R.C. 149.43 should be construed liberally in favor of broad access, and noting that any doubt is resolved in favor of disclosure of public records). 449 State ex rel. Gaydosh v. Twinsburg, 93 Ohio St.3d 576, 580, 2001-Ohio-1613. 450 State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, at ¶8; State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 2000-Ohio-142. 451 State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio St.3d 165, 2009-Ohio-590, at ¶11. 452 State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 2001-Ohio-193; State ex rel. Ohio Patrolmen’s Benevolent Ass’n v. Mentor, 89 Ohio St.3d 440, 449, 2000-Ohio-214. 453 R.C. 149.43(C)(2)(a). 454 R.C. 149.43(C)(2)(b). 455 State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149; State ex rel. Laborers Int’l Union of N. Amer., Local Untion No. 500 v. Summerville, 122 Ohio St.3d 1234, 2009-Ohio-4090. 456 State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149. 457 R.C. 149.43(C)(2)(b)(i); State ex rel. Braxton v. Nichols, 8th Dist. Nos. 93653, 93654, and 93655, 2010-Ohio-3193. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Four: Enforcement and Liabilities promised to permit inspection or deliver copies within a specified period of time but failed to fulfill that promise. 458 If attorney fees are awarded under either of these provisions, they may be reduced or eliminated at the discretion of the court (see Section 5, below). Attorney fee awards are generally reviewed on appeal under an abuse of discretion standard. 459

2. Amount of Fees Only those attorney fees directly associated with the mandamus may be awarded, 460 and the relator is entitled to fees only insofar as the requests had merit. 461 Reasonable attorney’s fees also include reasonable fees incurred to produce proof of the reasonableness and amount of the fees and to otherwise litigate entitlement to the fees. 462 The opportunity to collect attorney fees does not apply when the relator appears before the court pro se (without an attorney), even if the pro se relator is an attorney. 463 Court costs and reasonable attorney’s fees awarded in public records mandamus actions are considered remedial rather than punitive. 464

3. Statutory Damages A person who transmits a valid written request for public records by hand delivery or certified mail 465 is entitled to receive statutory damages if a court finds that the public office failed to comply with its obligations under R.C. 149.43(B). 466 The award of statutory damages is not considered a penalty, but is intended to compensate the requestor for injury arising from lost use 467 of the requested information, and if lost use is proven, then injury is conclusively presumed. Statutory damages are fixed at $100 for each business day during which the respondent fails to comply with division (B), beginning with the day on which the relator files a mandamus action to recover statutory damages, up to a maximum of $1000. This means that a respondent may stop further accrual of statutory damages by fully complying with division (B) before the maximum is reached.

4. Recovery of Deleted E-mail Records The Ohio Supreme Court has determined that if there is evidence showing that records in e-mail format have been deleted in violation of a public office’s records retention and disposition schedule, the public office has a duty to recover the contents of deleted e-mails and to provide access to them. 468 The courts will consider the relief available to the requester based on the following factors: a. There must be a determination made as to whether deleted e-mails have been destroyed, as there is no duty to create or provide non-existent records. b. The requestor must make a prima facie showing that the e-mails were deleted in violation of applicable retention schedules, unrebutted by defendant(s). c.

There must be some evidence that recovery of the e-mails may be successful.

458

R.C. 149.43(C)(2)(b)(ii). State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149. State ex rel. Gannett Satellite Info. Network v. Petro, 81 Ohio St.3d 1234, 1236, 1998-Ohio-638 (determining that fees incurred as a result of other efforts to obtain the same records was not related to the mandamus action and were excluded from the award). 461 State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, at ¶25 (denying relator’s attorney’s fees due to “meritless request”); State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 317, 2001-Ohio-193. 462 R.C. 149.43(C)(2)(c); State ex rel. Miller v. Brady, 123 Ohio St.3d 255, 2009-Ohio-4942. 463 State ex rel. Yant v. Conrad, 74 Ohio St.3d 681, 684, 1996-Ohio-234; State ex rel. Thomas v. Ohio St. Univ., 71 Ohio St.3d 245, 251, 1994-Ohio261. 464 R.C. 149.43(C)(2)(c). 465 State ex rel. Miller v. Brady, 123 Ohio St.3d 255, 2009-Ohio-4942. 466 R.C. 149.32(C)(1). 467 R.C. 149.43(C)(1); but see State ex rel. Bardwell v. Rocky River Police Dep’t (8th Dist.), 2009-Ohio-727, at ¶63 (finding that a public official’s improper request for requester’s identity, absent proof that this resulted in actual “lost use” of the records requested, does not provide a basis for statutory damages). 468 State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶41. 459 460

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The Ohio Public Records Act Chapter Four: Enforcement and Liabilities d. While the expense of the recovery services is not a consideration, the recovery efforts need only be “reasonable, not Herculean,” consistent with a public office’s general duties under the Public Records Act; and e. There must be a determination made as to who should bear the expense of forensic analysis. 469

5. Reduction of Attorney Fees and Civil Penalty 470 After any reasonable attorney’s fees and any civil penalty are calculated and awarded, the court may reduce or eliminate either or both such awards, if the court determines both of the following: 471 a. That, based on the law as it existed at the time, a well-informed person responsible for the requested public records reasonably would have believed that the conduct of the respondent did not constitute a failure to comply with an obligation in accordance with R.C. 149.43(B), and, b. That a well-informed person responsible for the requested public records reasonably would have believed that the conduct of the public office would serve the public policy that underlies the authority that it asserted as permitting that conduct.

469

State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶51 (finding that, where newspaper sought to inspect improperly deleted e-mails, the public office had to bear the expense of forensic recovery). State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶48 (finding that the statutory standards for awarding attorney fees apply to records requests and cases filed after September 29, 2007, the effective date of the amendment creating the standard); State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, at ¶47 fn. 1. 471 R.C. 149.43(C)(1)(a)-(b) (providing for a reduction of civil penalty); R.C. 149.43(C)(2)(c)(i)-(ii) (providing for a reduction in attorney’s fees); State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236, 2010-Ohio-5680, at ¶17 (even if court had found denial of request contrary to statute, requester would not have been entitled to attorney fees because the public office’s conduct was reasonable); State ex rel. Rohm v. Fremont City Sch. Dist. Bd. of Educ., 6th Dist. No. S-09-030, 2010-Ohio-2751 (respondent did not demonstrate reasonable belief that its actions did not constitute a failure to comply). 470

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The Ohio Public Records Act Chapter Five: Other Obligations of a Public Office V. Chapter Five: Other Obligations of a Public Office

Public offices have other obligations with regard to the records that they keep. These include: 

Managing public records by organizing them such that they can be made available in response to public records requests, 472 and ensuring that all records—public or not—are maintained and disposed of only in accordance with properly adopted applicable records retention schedules. 473



Maintaining a copy of the office’s current records retention schedules at a location readily available to the public. 474



Adopting and posting an office public records policy; 475 and



Ensuring that all elected officials associated with a public office, or their designees, obtain three hours of certified public records training through the Ohio Attorney General’s office once during each term of office. 476

A. Records Management Records are a crucial component of the governing process. They contain information that supports functions affecting every person in government and within its jurisdiction. Like other important government resources, records and the information they contain need to be well managed to ensure accountability, efficiency, economy, and overall good government. The term “records management” encompasses two distinct obligations of a public office, each of which furthers the goals of the Ohio Public Records Act. First, in order to facilitate broader access to public records, a public office must organize and maintain the public records it keeps in a manner such that they can be made available for inspection or copying in response to a public records request. 477 Second, in order to facilitate transparency in government, Ohio’s records retention law, R.C. 149.351, prohibits unauthorized removal, destruction, mutilation, transfer, damage, or disposal of any record or part of a record, except as provided by law or under the rules adopted by the records commissions (i.e., pursuant to approved records retention schedules). 478 Therefore, in the absence of a law or retention schedules permitting disposal of particular records, an office lacks the required authority to dispose of those records, and must maintain them until proper authority to dispose of them is obtained. In the meantime, the records remain subject to public records requests. Public offices at various levels of government, including state agencies, county boards and commission, and local political subdivisions, have different resources and processes for adopting records retention schedules. Those are described in this section. A public office shall only create records that are “necessary for the adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and for the protection of the legal and financial rights of the state and persons directly affected by the agency’s activities.” 479 This standard only addresses the records required to be created by a public office, which may receive many records in addition to those it creates.

472

R.C. 149.43(B)(2). R.C. 149.351(A). R.C. 149.43(B)(2). 475 R.C. 149.43(E)(1). 476 R.C. 149.43(E)(1). 477 R.C. 149.43 (B)(2); see Chapter Two: B. “Rights and Obligations of a Public Office” (providing more information about records management in the context of public records requests). 478 R.C. 149.351(A). 479 R.C. 149.40. 473 474

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The Ohio Public Records Act Chapter Five: Other Obligations of a Public Office 1. Records Management Programs a. Local Government Records Commissions Authorization for disposition of local government records is provided by applicable statutes, and by rules adopted by records commissions at the county, 480 township 481 , and municipal 482 levels. Records commissions also exist for each library district, 483 special taxing district, 484 school district, 485 and educational service center. 486 Records commissions are responsible for reviewing applications for one-time disposal of obsolete records, as well as records retention schedules submitted by government offices within their jurisdiction. 487 Once a commission has approved an application or schedule, it is forwarded to the State Archives at the Ohio Historical Society for review and identification of records 488 that the State Archives deems to be of continuing historical value. 489 Upon completion of that process, the Ohio Historical Society will forward the application or schedule to the Auditor of State for approval or disapproval. 490

b. State Records Program The Ohio Department of Administrative Services administers the records program for legislative and judicial branches of government 491 and for all state agencies, with the exception of statesupported institutions of higher education. 492 Among its other duties, the state records program is responsible for establishing “general schedules” for the disposal of certain types of records common to most state agencies. Once a general schedule has been officially adopted by a state agency, 493 when the time specified in the general schedule has elapsed, the records identified should no longer have sufficient administrative, legal, fiscal, or other value to warrant further preservation by the state. 494 If a record series is not covered by a state general schedule, state agencies can submit retention schedules to DAS via the Records and Information Management System (RIMS) for approval by DAS, the Auditor of State and the State Archivist. The state’s records program works in a similar fashion to local records commissions, except that applications and schedules are forwarded to the Ohio Historical Society and the Auditor of State for review simultaneously following the approval of DAS. 495 The Auditor decides whether to approve, reject, or modify applications and schedules based on the continuing administrative and fiscal value of the state records to the state or to its citizens. 496

480

R.C. 149.38. R.C. 149.42 482 R.C. 149.39. 483 R.C. 149.411. 484 R.C. 149.412. 485 R.C. 149.41. 486 R.C. 149.41. 487 R.C. 149.331, .38, .39, .41, .411, .412, .42. 488 R.C. 149.39. 489 R.C. 149.31, .332, .333, .38, .39, .41, .41, .412, .42. 490 R.C. 149.39. 491 R.C.149.332. 492 R.C. 149.33(A); Information about records management for state agencies is available at: http://das.ohio.gov/Divisions/GeneralServices/StatePrintingandMailServices/RecordsManagement/tabid/265/Default.aspx (last visited Dec. 3, 2010). 493 Instructions for how to adopt DAS general retention schedules are on page 20 of the RIMS User Manual, available at: http://www.das.ohio.gov/Divisions/GeneralSevices/StatePrintingandMailSevices/RecordsManagement/tabid/265/Default.aspx. 494 R.C. 149.331(C); General retention schedules (available for adoption by all state agencies) and individual state agency schedules are available at: http://apps.das.ohio.gov/rims/SelectMenu/Selection.asp (last visited Dec. 3, 2010). 495 R.C. 149.333. 496 R.C. 149.333. 481

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The Ohio Public Records Act Chapter Five: Other Obligations of a Public Office c. Records Programs for State-supported Colleges and Universities State-supported institutions of higher education are unique, in that their records programs are established and administered by their respective boards of trustees. 497 Through their records programs, these state offices are charged with applying efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposition of records. 498

2. Records Retention and Disposition a. Retention Schedules Records of a public office may be destroyed, but only if they are destroyed in compliance with a properly approved records retention schedule. 499 In a 2008 decision, the Ohio Supreme Court emphasized that, “in cases in which public records, including e-mails, are properly disposed of in accordance with a duly adopted records-retention policy, there is no entitlement to those records under the Ohio Public Records Act.” 500 However, if the retention schedule does not address the particular type of record in question, the record must be kept until the schedule is properly amended to address that category of records. Also, if a public record is retained beyond its properly approved destruction date, it keeps its public record status until it is destroyed and is thus subject to public records requests. 501 In crafting proposed records retention schedules, a public office must evaluate the length of time each type of record warrants retention for administrative, legal or fiscal purposes after it has been received or created by the office. 502 Consideration should also be given to the enduring historical value of each type of record, which will be evaluated by the Ohio Historical Society when that office conducts its review. Local records commissions may consult with the Ohio Historical Society during this process; 503 the state records program offers consulting services for state offices. 504

b. Transient Records Adoption of a schedule for transient records — that is, records containing information of short term usefulness — allows a public office to dispose of these records once they are no longer of administrative value. 505 Examples of transient records include voice mail messages, telephone message slips, post-it notes, and superseded drafts.

c. Records Disposition It is important to document this disposition of records after they have satisfied their approved retention periods. Local governments should file a Certificate of Records Disposal (RC-3) with the Ohio Historical Society at least fifteen business days prior to the destruction in order to allow the Historical Society to select records of enduring historical value. State agencies can document their records disposals on the RIMS system or in-house. It is important to be able to show what schedule the records were disposed under, the record series title, inclusive dates of the records, and the date of disposal. 497

R.C. 149.33(B). R.C. 149.33. 499 R.C. 149.351; R.C. 121.211. 500 State ex rel. Toledo Blade Co. v. Seneca County Bd. of Comm’rs, 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶23. 501 Keller v. City of Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599; State ex rel. Dispatch Printing Co. v. City of Columbus, 90 Ohio St.3d 39, 41, 2000-Ohio-8 (police department violated R.C. 149.43 when records were destroyed in contravention of City’s retention schedule). 502 R.C. 149.34. 503 R.C. 149.31(A) (providing that “[t]he archives administration shall be headed by a trained archivist designated by the Ohio Historical Society and shall make its services available to county, municipal, township, school district, library, and special taxing district records commissions upon request.”). 504 R.C. 149.331(D). 505 State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, at ¶24 n.1. 498

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The Ohio Public Records Act Chapter Five: Other Obligations of a Public Office 3. Liability for Unauthorized Destruction of Records All records are considered to be the property of the public office, and must be delivered by outgoing officials and employees to their successors in office. 506 Improper destruction or damage of a record is a violation of R.C. 149.351.

a. Injunction and Civil Forfeiture Ohio law allows “any person . . . aggrieved by” 507 the unauthorized “removal, destruction, mutilation, transfer, or other damage to or disposition of a record,” or by the threat of such action, to file either or both of the following types of lawsuits: 

A civil action requesting an injunction to force the public office to comply with the records retention laws, as well as any reasonable attorney’s fees associated with the suit. 508



A civil action to recover a forfeiture of $1,000 for each violation of the applicable records retention law or rules, as well as any reasonable attorney’s fees associated with the suit. 509

A person has one year from the date of the discovery of the violation to file the above actions, 510 and has the burden of providing evidence that records were destroyed in violation of R.C. 149.351. 511 Because the Ohio Supreme Court has held that both a single document in a file as well as the file itself can each be records, and the number of violations will relate in some way to the number of records involved, the fines can add up. In Kish et al. v. City of Akron, two former city employees sued the City of Akron, alleging the city inappropriately destroyed 860 records documenting compensatory time the employees had earned. The employees sued under R.C. 149.351(B)(2) and asked for $1,000 per record that they alleged had been destroyed in violation of records retention laws. The Supreme Court upheld 512 an $860,000 fine for the unauthorized destruction of 860 city employee time sheets that had been kept in two separate files. 513 The Court held that each individual time sheet was a record in and of itself, and that destruction of each time sheet constituted a violation for purposes of the civil penalty. 514

b. Attorney Fees The aggrieved person may seek an award of reasonable attorney fees for either the injunctive action or an action for civil forfeiture. 515 An award of attorney fees under R.C. 149.351 is discretionary. 516

506

R.C. 149.351(A). Walker v. Ohio St. Univ. Bd. of Tr. (10th Dist.), 2010-Ohio-373, at ¶¶22-27 (determining that a person is “aggrieved by” a violation of R.C. 149.351(A) when, (1) the person has a legal right to disclosure of a record of a public office, and (2) the disposal of the record, not permitted by law, allegedly infringes the right); see also State ex rel. Cincinnati Enquirer v. Allen (1st Dist.), 2005-Ohio-4856, at ¶15, appeal not allowed, 108 Ohio St.3d 1439, 2006-Ohio-421; State ex rel. Sensel v. Leone (Feb. 9, 1998), 12th Dist. No. CA97-05-102, unreported, reversed on other grounds (1999), 85 Ohio St.3d 152, Black’s Law Dictionary (9th ed. 2009) 77. 508 R.C. 149.351(B)(1). 509 R.C. 149.351(B)(2) 510 R.C. 2305.11(A); Snodgrass v. City of Mayfield Heights (8th Dist.), 2008-Ohio-5095, at ¶15 ( noting that “[i]t is undisputed that a one-year statute of limitations applies to a [R.C. 149.351] public records claim and that the discovery rule applies to such claims.”). 511 Snodgrass v. City of Mayfield Heights (8th Dist.), 2008-Ohio-5095, at ¶15; State ex rel. Doe v. Register (12th Dist.), 2009-Ohio-2448. 512 NOTE: The Supreme Court was answering questions certified to it by the U.S. Court of Appeals for the Sixth Circuit. Therefore, the Court did not technically “uphold” the fine, although it is clear that that would have been the result had the case, and not just the certified questions, been before them. See Kish v. City of Akron, 109 Ohio St.3d 162, 2006-Ohio-1244. 513 Kish v. City of Akron, 109 Ohio St.3d 162, 2006-Ohio-1244. 514 Kish v. City of Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, at ¶¶25-44; see also Cwynar v. Jackson Twp. Bd. of Trs. (5th Dist.), 178 Ohio App.3d 345, 2008-Ohio-5011. 515 R.C. 149.351(B)(1) - (2). 516 Cwynar v. Jackson Twp. Bd. of Trs. (5th Dist.), 178 Ohio App.3d 345, 2008-Ohio-5011, at ¶56. 507

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The Ohio Public Records Act Chapter Five: Other Obligations of a Public Office 4. Availability of Records Retention Schedules All public offices must maintain a copy of all current records retention schedules at a location readily available to the public. 517

B. Records Retention - Practical Pointers 1. Fundamentals Don’t be a Pack Rat Every record, public or not, that is kept by a public office must be covered by a records retention schedule. Without an applicable schedule dictating how long a record must be kept and when it can be destroyed, a public office must keep that record forever. Apart from the inherent long-term storage problems and associated cost this creates for a public office, the office is also responsible for continuing to maintain the record in such a way that it can be made available at any time if it is responsive to a public records request. Creating and following schedules for all of its records allows a public office to dispose of records once they are no longer necessary or valuable. Content - Not Medium - Determines How Long to Keep a Record Deciding how long a record should be kept is based on the content of the record, not on the medium on which it exists. Not all paper documents are “records” for purposes of the Public Records Act; similarly, not all documents transmitted via e-mail are “records” that must be maintained and destroyed pursuant to a records retention schedule. Accordingly, in order to fulfill both its records management and public records responsibilities, a public office should categorize all of the items it keeps that are deemed to be records – regardless of the form in which they exist – based on content, and store them based on those content categories, or “records series,” for as long as the records have legal, administrative, fiscal, or historic value. (Note that storing e-mail records unsorted on a server does not satisfy records retention requirements, because the server does not allow for the varying disposal schedules of different categories of records.) Practical Application Creating and implementing a records management system might sound daunting. For most public offices, though, it is a matter of simple housekeeping. Many offices already have the scaffolding of existing records retention schedules in place, which may be augmented in the manner outlined below.

2. Managing Records in Five Easy Steps: a. Conduct a Records Inventory The purpose of an inventory is to identify and describe the types of records an office keeps. Existing records retention schedules are a good starting point for determining the types of records an office keeps, as well as identifying records that are no longer kept or new types of records for which schedules need to be created. For larger offices, it is helpful to designate a staff member from each functional area of the office who knows the kinds of records their department creates and why, what the records document, and how and where they are kept.

b. Categorize Records by Record Series Records should be grouped according to record series. A record series is a group of similar records that are related because they are created, received, or used for or result from the same 517

R.C. 149.43 (B)(2).

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The Ohio Public Records Act Chapter Five: Other Obligations of a Public Office purpose or activity. Record series descriptions should be broad enough to encompass all records of a particular type (“Itemized Phone Bills” rather than “FY07-FY08 Phone Bills” for instance), but not so broad that it fails to be instructive (such as “Finance Department e-mails”) or leaves the contents open to interpretation or “squeezing.”

c. Decide How Long Each Records Series should be Kept Retention periods are determined by assessing four values for each category of records: administrative, legal, fiscal, and historical. Administrative Value: A record maintains its administrative value as long as it is useful and relevant to the execution of the activities that caused the record to be created. Administrative value is determined by how long the record is needed by the office to carry out – that is, to “administer” – its duties. Every record created by government entities should have administrative value, which can vary from being transient (a notice of change in meeting location), to long-term (a policies and procedures manual). Legal Value: A record has legal value if it documents or protects the rights or obligations of citizens or the agency that created it, provides for defense in litigation, or demonstrates compliance with laws, statutes, and regulations. Examples include contracts, real estate records, retention schedules, and licenses. Fiscal Value: A record has fiscal value if it pertains to the receipt, transfer, payment, adjustment, or encumbrance of funds or if it is required for an audit. Examples include payroll records and travel vouchers. Historical Value: A record has historical value if it contains significant information about people, places, or events. The State Archives suggests that historical documents be retained permanently. Examples include board or commission meeting minutes and annual reports.

d. Dispose of Records on Schedule Records retention schedules indicate how long particular record series must be kept and when and how the office can dispose of them. Records kept past their retention schedule are still subject to public records requests, and can be unwieldy and expensive to store. As a practical matter, it is helpful to designate a records manager or records custodian to assist in crafting retention schedules, monitoring when records are due for disposal, and ensuring proper completion of disposal forms.

e. Review Schedules Regularly and Revise, Delete, or Create New Ones as the Law and the Office’s Operations Change Keep track of new records that are created as a result of statutory and policy changes. Ohio law requires all records to be scheduled within one year after the date that they are created or received. 518

C. In Summary: Practical Pointers for Public Offices Practical Pointer #1: If you neglect to dispose of your records when your retention schedules say you can, they are fair game for a public records request. Practical Pointer #2: If you don’t have a schedule that says how long you have to keep a particular kind of record, you can never throw that record away. There could be legal consequences if you cannot produce those unscheduled records.

518

R.C. 149.34(C).

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The Ohio Public Records Act Chapter Five: Other Obligations of a Public Office Practical Pointer #3: Medium or format of an item is not determinative of whether that item is a “record.” Rather, whether an item is a record is determined by its content. In fact, the use and retention period are factors in determining the best storage media. Practical Pointer #4: Every record of your office must be covered by a retention schedule, not just the public records. Practical Pointer #5: Taking inventory will help you identify records that haven’t been scheduled, locate unnecessary copies, and purge records that are being kept past their retention period. Practical Pointer #6: Make sure you have a schedule for transient records that permits destruction of records that are temporary in nature – such as telephone messages, drafts, voice mail, and post-it notes – as soon as they are no longer of administrative value. Practical Pointer #7: Designate a records manager/records custodian. Practical Pointer #8: Keep track of new records that are created as a result of statutory/policy changes, because new records must be scheduled within one year after the date they are created or received. Practical Pointer #9: Document the disposition of records.

D. Helpful Resources for Local Government Offices Ohio Historical Society/State Archives - Local Government Records Program The Local Government Records Program of the State Archives provides records-related advice and assistance to local governments in order to facilitate the identification and preservation of local government records with enduring historical value. Please direct inquiries and send forms to: The Ohio Historical Society/State Archives Local Government Records Program 1982 Velma Avenue Columbus, OH 43211 (614) 297-2553 (phone) (614) 297.2546 (fax) [email protected]

E. Helpful Resources for State Government Offices 1. Ohio Department of Administrative Services Records Management Program Records are a crucial component of the governing process. They contain information that supports functions affecting every person in government or within its jurisdiction. Like other important government resources, records and the information they contain need to be managed well to ensure accountability, efficiency, economy, and overall good government. The Ohio Department of Administrative Services’ State Records Administration can provide records management advice and assistance to state agencies, as well a provide training seminars on request. Information available on their website includes: 

Access to the Records Information Management System (RIMS) retention schedule database;



RIMS User Manual;



General Retention Schedules; and



Records Inventory and Analysis template.

For more information, contact DAS at 614-466-1105 or visit www.das.ohio.gov. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Five: Other Obligations of a Public Office 2. The Ohio Historical Society, State Archives The State Archives can assist state agencies with the identification and preservation of records with enduring historical value. For more information or to schedule a records appraisal, contact State Archives at 614-297-2536.

F. Helpful Resources for All Government Offices Ohio Electronic Records Committee Electronic records present unique challenges for archivists and records managers. As society shifts from traditional methods of recordkeeping to electronic recordkeeping, the issues surrounding the management of electronic records become more significant. Although the nature of electronic records is constantly evolving, these records are being produced at an ever-increasing rate. As these records multiply, the need for leadership and policy becomes more urgent. The goal of the Ohio Electronic Records Committee (OhioERC) is to draft guidelines for the creation, maintenance, long term preservation of and access to electronic records created by Ohio’s state government. Helpful documents available on the OERC’s website include:  Hybrid Microfilm Guidelines;  Digital Document Imaging Guidelines;  Electronic Records Management Guidelines;  Electronic Records Policy;  General Schedules for Electronic Records;  Managing Electronic Mail; and  Trustworthy Information Systems Handbook. For more information and to learn about ongoing projects, visit the Ohio Electronic Records Committee website at http://ohsweb.ohiohistory.org/ohioerc.

G. Public Records Policy A public office must create and adopt a policy for responding to public records requests. 519 The Ohio Attorney General’s office has developed a model public records policy, which may serve as a guide. 520 The public records policy must be distributed to the records manager, records custodian, or the employee who otherwise has custody of the records of the office, and that employee must acknowledge receipt. In addition, a poster describing the policy must be posted in the public office in a conspicuous location, and in all branch offices. 521 The public records policy must be included in the office’s policies and procedures manual, if one exists, and may be posted on the office’s website. 522 Compliance with these requirements will be audited by the Auditor of State in the course of a regular financial audit. 523

519

R.C. 149.43(E)(1). R.C. 149.43(E0(1); Attorney General’s Model Policy available at: www.OhioAttorneyGeneral.gov/Sunshine. R.C. 149.43(E)(2). 522 R.C. 149.43(E)(2). 523 R.C. 109.43(G). 520 521

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The Ohio Public Records Act Chapter Five: Other Obligations of a Public Office A public records policy may . . .  limit the number of records that the office will transmit by United States mail to a particular requester to ten per month, unless the requester certifies in writing that the requested records and/or the information those records contain will not be used or forwarded for commercial purposes. For purposes of this division, “commercial” shall be narrowly construed and does not include reporting or gathering of news, reporting or gathering of information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research. 524

A public records policy may not . . .  limit the number of public records made available to a single person;  limit the number of records the public office will make available during a fixed period of time; or  establish a fixed period of time before the public office will respond to a request for inspection or copying of public records (unless that period is less than eight hours). 525

H. Required Public Records Training for Elected Officials All local and statewide elected government officials 526 or their designees 527 must attend a three-hour public records training program during each term of elective office 528 during which the official serves. 529 The training must be developed and certified by the Ohio Attorney General’s Office, and presented either by the Ohio Attorney General’s Office or an approved entity with which the Attorney General’s Office contracts. 530 The Attorney General shall ensure that the training programs and seminars are accredited by the Commission on Continuing Legal Education established by the Supreme Court. 531 Compliance with the training provision will be audited by the Auditor of State, in the course of a regular financial audit. 532

524

R.C. 149.43(B)(7). In addition to a public records policy, a public office may adopt policies and procedures it will follow in transmitting copies of public records by U.S. mail or any other means of delivery or transmission. Note that a public office adopting these policies and procedures is deemed by statute to have created an enforceable duty on itself to comply with them. 525 R.C. 149.43(E)(1). 526 R.C. 109.43(A)(2) (definition of “elected official”); NOTE: the definition excludes justices, judges or clerks of the Supreme Court of Ohio, courts of appeals, courts of common pleas, municipal courts, and county courts. 527 R.C. 109.43(A)(1) (providing that training may be received by an “appropriate” designee, R.C. 109.43(B) (no definition of “appropriate” in the statute), and may be the designee of the sole elected official in a public office, or of all the elected officials if the public office includes more than one elected official). 528 R.C. 109.43(B) (providing that training shall be three hours for every term of office for which the elected official was appointed or elected to the public office involved). 529 R.C.109.43(E)(1); R.C. 109.43(B) (providing that this training is intended to enhance an elected official’s knowledge of his or her duty to provide access to public records, and to provide guidance in developing and updating his or her office’s public records policies); R.C. 149.43(E)(1) (providing that another express purpose of the training is “[t]o ensure that all employees of public offices are appropriately educated about a public office’s obligations under division (B) of [the Public Records Act].”). 530 R.C. 109.43(B)-(D) (providing that the Attorney General’s Office may not charge a fee to attend the training programs it conducts, but outside contractors that provide the certified training may charge a registration fee that is based on the “actual and necessary” expenses associated with the training, as determined by the Attorney General’s Office). 531 R.C. 109.43(B). 532 R.C. 109.43(G). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics VI. Chapter Six: Special Topics A. CLEIRs: Confidential Law Enforcement Investigatory Records Exception

533

This exception is often mistaken as one that applies only to police investigations. In fact, the Confidential Law Enforcement Investigatory Records exception, commonly known as “CLEIRs,” applies to investigations of alleged violations of criminal, quasi-criminal, civil, and administrative law. It does not apply to most investigations conducted for purposes of public office employment matters, such as internal disciplinary investigations, 534 pre-employment questionnaires and polygraph tests, 535 or to public records that later become the subject of a law enforcement investigation. 536

1. CLEIRs Defined: Under CLEIRs, a public office may withhold any records that both: (1) Pertain to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature; 537 and (2) If released would create a high probability of disclosing any of the following five types of information: 

Identity of an uncharged suspect;



Identity of a source or witness to whom confidentiality was reasonably promised;



Specific confidential investigatory techniques or procedures;



Specific investigatory work product; or

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Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source. 538

2. Determining whether the CLEIRs exception applies Remember that the CLEIRs exception is a strict two-step test, and a record must first qualify as pertaining to a “law enforcement matter” under Step One before any of the exception categories in Step Two will apply to the record. 539

Step One: Pertains to “A Law Enforcement Matter” An investigation is only considered a “law enforcement matter” if it meets each prong of the following 3-part test: (Begins on next page)

533

R.C. 149.43(A)(1)(h),(A)(2). Mehta v. Ohio Univ. (Ct. Claims), 2009-Ohio-4699, at ¶¶36-38 (determining that a public university’s internal report of investigation of plagiarism was not excepted from disclosure under the Public Records Act). 535 State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 142, 1995-Ohio-248. 536 See, State ex rel. Morgan v. City of New Lexington, 112 Ohio St.3d 33, 42, 2006-Ohio-6365, at ¶51 (records “made in the routine course of public employment” that related to but preceded a law enforcement investigation are not confidential law enforcement investigatory records); State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 316, 2001-Ohio-193. 537 R.C. 149.43(A)(2). 538 R.C. 149.43(A)(2)(a)-(d). 539 State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 377, 1996-Ohio-214 (because 911 tapes are not part of an investigation, “it does not matter that release of the tapes might reveal the identity of an uncharged suspect or contain information which, if disclosed, would endanger the life or physical safety of a witness.”); State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 170 (respondent attempted to apply CLEIRs Step Two “confidential informant” exception to evaluator’s notes in personnel records). 534

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The Ohio Public Records Act Chapter Six: Special Topics (a) Has an Investigation Been Initiated Upon Specific Suspicion of Wrongdoing?

540

Investigation records must be generated in response to specific alleged misconduct, not as the incidental result of routine monitoring. 541 However, “routine” investigations of the use of deadly force by officers, even if the initial facts indicate accident or self-defense, are sufficient to meet this requirement. 542

(b) Does the Alleged Conduct Violate Criminal, 543 Quasi-criminal, 544 Civil, or Administrative Law? 545 So long as the conduct is prohibited by statute or administrative rule, whether the punishment is criminal, quasi-criminal, civil, or administrative in nature is irrelevant. 546 “Law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature” refers directly to the enforcement of the law, and not to employment or personnel matters ancillary to law enforcement matters. 547 Disciplinary investigations of alleged violations of internal office policies or procedures are not law enforcement matters, 548 including disciplinary matters and personnel files of law enforcement officers. 549

(c) Does the Public Office Have the Authority to Investigate or Enforce the Law Allegedly Violated? If the office does not have legally mandated investigative 550 or enforcement authority over the alleged violation of the law, then the records it holds are not a law enforcement matter for that office. 551 For example, if an investigating law enforcement agency obtains a copy of an otherwise

540

E.g., State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 53. State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 53; State ex rel. Ohio Patrolmen’s Benevolent Ass’n v. City of Mentor, 89 Ohio St.3d 440, 445, 2000-Ohio-214. 542 See State ex rel. Nat’l Broadcasting Co. v. Cleveland (1991), 57 Ohio St.3d 77, 79-80; see also State ex rel. Oriana House, Inc. v. Montgomery (10th Dist.), 2005-Ohio-3377, at ¶77 (noting that the magistrate found that redacted portions of audit records were directed to specific misconduct and were not simply part of routine monitoring). 543 State ex rel. police Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 187, 1995-Ohio-19. 544 See Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-5485, at ¶¶41-43 (providing bankruptcy as an example of a “quasi-criminal” matter); State ex rel. Oriana House, Inc. v. Montgomery (10th Dist.), 2005-Ohio-3377, at ¶ 76 (noting that the special audit by the Auditor of State clearly qualities as both a “law enforcement matter of a […] civil, or administrative nature” and a “law enforcement matter of a criminal [or] quasicriminal”matter); In re Fisher (1974), 39 Ohio St.2d 71, 75-76 (providing juvenile delinquency as an example of a “quasi-criminal” matter). 545 E.g., State ex rel. Yant v. Conrad, 74 Ohio St.3d 681, 684, 1996-Ohio-234; State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 53 (noting that “[t]h issue is whether records compiled by the committee pertain to a criminal, quasi-criminal or administrative matter. Those categories encompass the kinds of anti-fraud and anti-corruption investigations undertaken by the committee. The records are compiled by the committee in order to investigate matter prohibited by state law and administrative rule.”); State ex rel. McGee v. Ohio St. Bd. of Psychology (1990), 49 Ohio St.3d 59, 60 (noting that “[t]he reference in R.C. 149.43(A)(2) to four types of law enforcement matters – criminal, quasi-criminal, civil, and administrative – evidences a clear statutory intention to include investigative activities of state licensing boards.”); State ex rel. Oriana House, Inc. v. Montgomery, 10th Dist. Nos. 04AP-492, 04AP-504, 2005-Ohio-3377, at ¶76 (noting that the special audit by the Auditor of State clearly qualifies as both a “law enforcement matter of a […] civil, or administrative nature” and a “law enforcement matter of a criminal [or] quasi-criminal” matter). 546 State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 31; State ex rel. McGee v. Ohio State Bd. of Psychology (1990), 49 Ohio St.3d 59. 547 State ex rel. Freedom Commc’n, Inc. v. Elida Cmty. Fire Co., 82 Ohio St.3d 578, 581, 1998-Ohio-411; State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 142, 1995-Ohio-248 (finding that polygraph test results, questionnaires, and all similar materials gathered in the course of a police department’s hiring process, are not “law enforcement matters” for purposes of CLEIRs. “Law enforcement matters” refers “directly to the enforcement of the law, and not to employment or personnel matters ancillary to law enforcement matters.”). 548 State ex rel. Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, at ¶49. 549 State ex rel. McGowan v. Cuyahoga Metro. Hous. Auth., 78 Ohio St.3d 518, 519, 1997-Ohio-191; State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 142, 1995-Ohio-248 (finding that the personal records of police officers reflecting the discipline of police officers are not confidential law enforcement investigatory records excepted from disclosure). 550 State ex rel. Oriana House, Inc. v. Montgomery, 10th Dist. Nos. 04AP-492, 04AP-504, 2005-Ohio-3377, at ¶76. 551 State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 1997-Ohio-349 (determining that records of alleged child abuse do not pertain to a law enforcement matter in the hands of county ombudsman office that has no legally mandated enforcement or investigative authority). 541

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The Ohio Public Records Act Chapter Six: Special Topics public record of another public office as part of an investigation, the original record kept by the other public office is not covered by the CLEIRs exception. 552

Step Two: High Probability of Disclosing Certain Information If an investigative record does pertain to a “law enforcement matter”, the CLEIRs exception applies if and only to the extent that release of the record would create a high probability of disclosing at least one of the following five types of information: 553

(a) Identity of an Uncharged Suspect in Connection with the Investigated Conduct An “uncharged suspect” is a person who at some point in the investigating agency’s investigation was believed to have committed a crime or offense, 554 but who has not been arrested 555 or charged 556 for the offense to which the investigative record pertains. The purposes of this exception include: (1) protecting the rights of individuals to be free from unwarranted adverse publicity; and (2) protecting law enforcement investigations from being compromised. 557 Only the particular information that has a high probability of revealing the identity of an uncharged suspect can be redacted from otherwise non-exempt records prior to the records’ release. 558 Where the contents of a particular record in an investigatory file are so “inextricably intertwined” with the suspect’s identity that redacting will fail to protect the person’s identity in connection with the investigated conduct, that entire record may be withheld. 559 However, the application of this exception to some records in an investigative file does not automatically create a blanket exception covering all other records in an investigative file, and the public office must still release

552

State ex rel. Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, at ¶51 (finding that “records made in the routine course of public employment before” an investigation began were not confidential law enforcement records); State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 316, 2001-Ohio-193 (finding that a records request of city’s public works superintendent for specified street repair records were “unquestionably public records” and “[t]he mere fact that these records might have subsequently become relevant to Dillery’s criminal cases did not transform them into records exempt from disclosure.”); State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 378, 1996-Ohio-214 (find that a pubic record that “subsequently came into the possession and/or control of a prosecutor, other law enforcement officials, or event he grand jury has no significance” because “[o]nce clothed with the public records cloak, the records cannot be defrocked of their status.”). 553 R.C. 149(A)(2); State ex rel. Multimedia v. Snowden, 72 Ohio St.3d 141, 1995-Ohio-248. 554 State ex rel. Musial v. City of N. Olmsted, 106 Ohio St.3d 459, 2005-Ohio-5521, at ¶23 (providing that a “suspect” is a “person believed to have committed a crime or offense.”). 555 State ex rel. Outlet Commc’n v. Lancaster Police Dep’t (1998), 38 Ohio St.3d 324, 328 (stating that “it is neither necessary nor controlling to engage in a query as to whether or not a person who has been arrested or issued a citation for minor criminal violations and traffic violations […] has been formally charged. Arrest records and intoxilyzer records which contain the names of persons who have been formally charged with an offense, as well as those who have been arrested and/or issued citations but who have not been formally charged, are not confidential. Law enforcement investigatory records with the exception of R.C. 149.43(A)(2)(a).”) (overruled on other grounds). 556 State ex rel. Musial v. City of N. Olmsted, 106 Ohio St.3d 459, 2005-Ohio-5521, at ¶¶23-24 (providing that a “charge” is a “formal accusation of an offense as a preliminary step to prosecution” and that a formal accusation of an offense requires a charging instrument, i.e., an indictment, information , or criminal complaint); see also Crim. R. 7; Black’s Law Dictionary 249 (8th ed. 2004); State ex rel. Master v. City of Cleveland, 75 Ohio St.3d 23, 30, 1996-Ohio-228 (“Master I”); State ex rel. Moreland v. City of Dayton (1993), 67 Ohio St.3d 129, 130. 557 State ex rel. Master v. City of Cleveland, 76 Ohio St.3d 340, 343, 1996-Ohio-300 (“Master II”) (citing “avoidance of subjecting persons to adverse publicity where they may otherwise never have been identified with the matter under investigation” and a law enforcement interest in not “compromising subsequent efforts to reopen and solve inactive cases” as two of the purposes of the uncharged suspect exception). 558 State ex rel. Master v. City of Cleveland, 75 Ohio St.3d 23, 30, 1996-Ohio-228 (“Master I”) (providing that “when a government body asserts that public records are excepted from disclosure and such assertion is challenged, the court must make an individualized scrutiny of the records in question” and “[i]f the “court finds that these records contain excepted information, this information must be redacted and any remaining information must be released.”) citing State ex rel. Nat’l Broad. Co. v. City of Cleveland (1998), 38 Ohio St.3d 79, 85; State ex rel. White v. Watson (8th Dist.), 2006Ohio-5234, at ¶4 (providing that “[t]he government has the duty to disclose public records, including the parts of a record which do not come within an exemption” and therefore, “if only part of a record is exempt, the government may redact the exempt part and release the rest.”). 559 See State ex rel. Ohio Patrolmen’s Benevolent Ass’n v. City of Mentor, 89 Ohio St.3d 440, 448, 2000-Ohio-214 (holding that the protected identities of uncharged suspects were not inextricably intertwined with all of the remaining records so as to exempt the totality of the investigative records); State ex rel. Master v. City of Cleveland, 76 Ohio St.3d 340, 343 1996-Ohio-300 (“Master II”) (exempting most of the subject records because the protected identities of uncharged suspects were inextricably intertwined with the investigatory records); State ex rel. McGee v. Ohio State Bd. of Psychology (1990), 49 Ohio St.3d 59, 60 (holding that where exempt information is so “intertwined” with the public information as to reveal the exempt information from the context, the record itself, and not just the exempt information, may be withheld). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics any investigative records that do not individually have a high probability of revealing the uncharged suspect’s identity. 560 The uncharged suspect exception applies even if:  time has passed since the investigation was closed; 561  the suspect has been accurately identified in media coverage; 562 or  the uncharged suspect is the person requesting the information. 563

(b) Identity of a Confidential Source For purposes of the CLEIRs exception, “confidential sources” are those who have been “reasonably promised confidentiality.” 564 A promise of confidentiality is considered reasonable if it was made on the basis of the law enforcement investigator’s individualized determination that the promise is necessary to obtain the information. 565 Where possible, it is advisable - though not required - that the investigator document the specific reasons why promising confidentiality was necessary to further the investigation. 566 Promises of confidentiality contained in policy statements or given as a matter of course during routine administrative procedures are not “reasonable” promises of confidentiality for purposes of the CLEIRs exception. 567 This exception exists only to protect the identity of the information source, not the information he or she provides. 568 However, where the contents of a particular record in an investigatory file are so inextricably intertwined with the confidential source’s identity that redacting will fail to protect the person’s identity in connection with the investigated conduct, that entire record may be withheld. 569

(c) Specific Confidential Investigatory Techniques or Procedures Specific confidential investigatory techniques or procedures, 570 including sophisticated scientific investigatory techniques or procedures such as forensic laboratory tests and their results, may be redacted pursuant to this exception. 571 One purpose of the exception is to avoid compromising the effectiveness of confidential investigative techniques. 572 Routine investigative techniques are not covered under the exception. 573

560

State ex rel. Rocker v. Guernsey County Sheriff’s Office, 2010-Ohio-3288, ¶11-15. State ex rel. Musial v. City of N. Olmstead, 106 Ohio St.3d 459, 2005-Ohio-5521, at ¶¶23-24. State ex rel. Rocker v. Guernsey County Sheriff’s Office, 2010-Ohio-3288, ¶10; State ex rel. Ohio Patrolmen’s Benevolent Ass’n v. City of Mentor, 89 Ohio St.3d 440, 447, 2000-Ohio-214. 563 State ex rel. Musial v. City of N. Olmstead, 106 Ohio St.3d 459, 2005-Ohio-5521, at ¶¶17-23. 564 State ex rel. Yant v. Conrad, 74 Ohio St.3d 681, 682, 1996-Ohio-234. 565 State ex rel. Toledo Blade Co. v. Telb (Lucas C.P. 1990), 50 Ohio Misc.2d 1, 9. 566 State ex rel. Toledo Blade Co. v. Telb (Lucas C.P. 1990), 50 Ohio Misc.2d 1, 9; see also State ex rel. Martin v. City of Cleveland, 67 Ohio St.3d 155, 156-57, 1993-Ohio-192 (finding that, to trigger an exception, a promise of confidentiality or a threat to physical safety need not be within the “four corners” of a document). 567 State ex rel. Toledo Blade Co. v. Telb (Lucas C.P. 1990), 50 Ohio Misc.2d 1, 9. 568 State ex rel. Toledo Blade Co. v. Telb (Lucas C.P. 1990), 50 Ohio Misc.2d 1, 9. 569 State ex rel. Beacon Journal Publ’g Co. v. Kent State Univ., 68 Ohio St.3d 40, 44, 1993-Ohio-146 (overruled on other grounds); State ex rel. Strothers v. McFaul (8th Dist. 1997), 122 Ohio App.3d 327, 332. 570 R.C. 149.43(A)(2)(c); State ex rel. Walker v. Balraj (Aug. 2, 2000), 8th Dist. No. 77967, unreported. 571 See State ex rel. Dayton Newspapers, Inc. v. Rauch (1984), 12 Ohio St.3d 100, 100-101 (finding that an autopsy report may be exempt as a specific investigatory technique or work product); but see, R.C. 313.10 (providing that final autopsy reports are specifically declared public records); State ex rel. Lawhorn v. White (Mar. 7, 1994), 8th App. No. 63290, unreported; State ex rel Williams v. City of Cleveland (Jan. 24, 1991), 8th App. No. 59571, unreported; State ex rel. Jester v. City of Cleveland (Jan. 17, 1991), 8th Dist. No. 56438, unreported; State ex rel. Apanovitch v. City of Cleveland (Feb. 6, 1991), 8th Dist. No. 588867, unreported. The three preceding cases were affirmed in State ex rel. Williams v. City of Cleveland, 64 Ohio St.3d 544, 1992-Ohio-115. 572 State ex rel. Broom v. Cleveland (Aug. 27, 1992), 8th Dist. No. 59571, unreported (noting that where “the records mention confidential investigatory techniques, the effectiveness of which could be compromised by disclosure” and “[t]o insure the continued effectiveness of these techniques, this court orders references to the techniques redacted” because “the information obtained from these techniques, if not otherwise protected, is ordered disclosed when such may be done without compromising the confidential technique.”). 573 State ex rel. Beacon Journal v. Univ. of Akron (1980), 64 Ohio St.2d 392, 397. 561 562

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The Ohio Public Records Act Chapter Six: Special Topics (d) Investigative Work Product Statutory Definition: Information, including notes, working papers, memoranda, or similar materials, assembled by law enforcement officials in connection with a probable or pending criminal proceeding is work product under R.C. 149.43(A)(2)(c). 574 These materials may be protected even when they appear in a law enforcement office’s files other than the investigative file. 575 “It is difficult to conceive of anything in a prosecutor’s file, in a pending criminal matter, that would not be either material compiled in anticipation of a specific criminal proceeding or the personal trial preparation of the prosecutor.” 576 However, there are some limits to the items in an investigative file covered by this exception. 577 Time Limits on Investigatory Work Product Exception: Once a law enforcement matter has commenced, the investigative work product exception applies until the matter has concluded. 578 A law enforcement matter is concluded only when all potential actions, trials, and post-trial proceedings in the matter have ended. Thus, the investigatory work product exception remains available as long as any opportunity exists for direct appeal or post-conviction relief, 579 including habeas corpus proceedings. 580 Even if no suspect has been identified, “once it is evident that a crime has occurred, investigative materials developed are necessarily compiled in anticipation of litigation and so fall squarely within the Steckman definition of work product.” 581 However, the work product exception is not merely an “ongoing investigation” exception. The investigating agency must be able to show that work product is being assembled in connection with a pending or highly probable criminal proceeding, not merely the possibility of future criminal proceedings. 582 Where a criminal defendant who is the subject of the records agrees not to pursue appeal or post conviction relief, the case is considered concluded, even if the time period for appeal or postconviction relief has not expired. 583 Not Waived by Criminal Discovery: The work product exception is not waived when a criminal defendant is provided discovery materials as required by law. 584

(e) Information that Would Endanger Life or Physical Safety if Released Information that, if released, would endanger the life or physical safety of law enforcement personnel, 585 a crime victim, a witness, or a confidential informant may be redacted before public 574

State ex rel. Beacon Journal Publ’g Co. v. Maurer, 91 Ohio St.3d 54, 56-57, 2001-Ohio-282 citing State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420. 575 State ex rel. Mahajan v. State Medical Bd., 2010-Ohio-5995, at ¶¶51-52 (investigative work product incidentally contained in chief enforcement attorney’s general personnel file). 576 State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 431-32 (expanding the previous definition of “investigative work product” expressly and dramatically, which had previously limited the term to only those materials that would reveal the investigator’s “deliberative and subjective analysis” of a case). 577 State ex rel. Ohio Patrolmen’s Benevolent Ass’n v. City of Mentor, 89 Ohio St.3d 440, 448, 2000-Ohio-214 (finding that certain records, e.g., copies of newspaper articles and statutes, are unquestionably nonexempt and do not become exempt simply because they are placed in an investigative or prosecutorial file); State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 361, 1997-Ohio-273 (providing that “[a]n examination […] reveals the following nonexempt records: The […] indictment, copies of various Revised Code Provisions, newspaper articles, a blank charitable organization registration statement form, the Brotherhood’s Yearbook and Buyer’s Guide, the transcript of the […] plea hearing, a videotape of television news reports, and a campaign committee finance report filed with the board of elections.”). 578 State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420. 579 State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 1997-Ohio-273. 580 Perry v. Onunwor (Dec. 7, 2000), 8th App. No. 78398, unreported (providing that “possibilities for further proceedings and trials [include] federal habeas corpus proceedings”). 581 State ex rel. Leonard v. White, 75 Ohio St.3d 516, 518, 1996-Ohio-204. 582 State ex rel. Ohio Patrolmen’s Benevolent Ass’n v. City of Mentor, 89 Ohio St.3d 440, 446, 2000-Ohio-214. 583 State ex rel. Cleveland Police Patrolmen’s Ass’n v. City of Cleveland, 84 Ohio St.3d 310, 311-12, 1999-Ohio-352 (providing that when a defendant signed an affidavit agreeing not to pursue appeal or post-conviction relief, trial preparation and investigatory work product exceptions were inapplicable). 584 State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 1997-Ohio-271. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics release of a record. 586 The danger must be self-evident; bare allegations or assumed conclusions that a person’s physical safety is threatened are not sufficient reasons to redact information. 587 Alleging that disclosing the information would infringe on a person’s privacy does not justify a denial of release under this exception. 588 Note: Non-expiring Step Two exceptions: When a law enforcement matter has concluded, only the work product exception expires. The courts have expressly or impliedly found that investigatory records which fall under the uncharged suspect, 589 confidential source or witness, 590 confidential investigatory technique, 591 and information threatening physical safety 592 exceptions apply despite the passage of time. Note: Law Enforcement Records not Covered by the CLEIRs Exception: As noted above, personnel and other administrative records not pertaining to a law enforcement matter would not be covered by the CLEIRs exception. In addition, the courts have specifically ruled that the following records are not covered: Offense and Incident Reports: Police offense or incident reports initiate investigations, but are not considered part of the investigation, and are therefore not a “law enforcement matter” covered by the CLEIRs exception. 593 Therefore, none of the information explained in Step Two above can be redacted from an initial incident report. 594 However, if an offense or incident report contains information that is otherwise exempt from disclosure under state or federal law, the exempt information may be redacted. 595 911 Records: Audio records of 911 calls are not considered to pertain to a “law enforcement matter,” or constitute part of an investigation, for the purposes of the CLEIRs exception. 596 Further, the courts have determined that a caller has no reasonable expectation of privacy in matters communicated in a 911 call, and since there is no basis to find a constitutional right of privacy in such calls, even Social Security Numbers may not be redacted. 597 As with other public records, a requester is entitled to access either the audio record, or a paper transcript. 598 However, information concerning telephone numbers, addresses, or names obtained from a 911 database maintained

585

State ex rel. Cleveland Police Patrolmen’s Ass’n v. City of Cleveland (1997), 8th App. No. 71346, 122 Ohio App.3d 696, 699 (finding that a “Strike Plan” and related records prepared in connection with the possible strike by teachers were not records because their release could endanger the lives of police personnel). 586 R.C. 149.43(A)(2)(d); see State ex rel. Martin v. City of Cleveland, 67 Ohio St.3d 155, 156, 1993-Ohio-192 (finding that a document does not need to specify within the four corners the promise of confidentiality or threat to physical safety). 587 See e.g., State ex rel. Johnson v. City of Cleveland (1992), 65 Ohio St.3d 331, 333-34, (overruled on other grounds). 588 See e.g., State ex rel. Johnson v. City of Cleveland (1992), 65 Ohio St.3d 331, 333-334. 589 R.C. 149.43(A)(2)(d); see State ex rel. Martin v. City of Cleveland, 67 Ohio St.3d 155, 156, 1993-Ohio-192 (finding that a document does not need to specify within the four corners the promise of confidentiality or threat to physical safety). 590 State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 54 (providing that “[o]ne purpose of the exemption in R.C. 149.43(A)(2) is to protect a confidential informant” and that “[t]his purpose would be subverted if a recorded (in which the informant’s identity is disclosed) were deemed subject to disclosure simply because a period of time had elapsed with no enforcement action”) (parentheses original). 591 State ex rel. Broom v. Cleveland (Aug. 27, 1992), 8th Dist. No. 59571, unreported. 592 State ex rel. Martin v. City of Cleveland, 67 Ohio St.3d 155, 1993-Ohio-192. 593 State ex rel. Beacon Journal Publ’g Co. v. City of Akron, 104 Ohio St.3d 339, 2004-Ohio-6557, at ¶55; State ex rel. Beacon Journal Publ’g Co. v. Maurer, 91 Ohio St.3d 54, 57, 2001-Ohio-282 (explaining its ruling by noting that it ruled the way it did “despite the risk that the report may disclose the identity of an uncharged suspect.”). 594 State ex rel. Beacon Journal Publ’g Co. v. Maurer, 91 Ohio St.3d 54, 57, 2001-Ohio-282. 595 State ex rel. Beacon Journal Publ’g Co. v. City of Akron, 104 Ohio St.3d 339, 2004-Ohio-6557, at ¶55 (explaining that “in Maurer, we did not adopt a per se rule that all police offense and incident reports are subject to disclosure notwithstanding the applicability of any exemption.”). 596 State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 10 Ohio St.3d 172, 2005-Ohio-685. 597 State ex rel Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 377, 1996-Ohio-214 (holding that 911 tapes at issue had to be released immediately). 598 State ex rel. Dispatch Printing Co. v. Morrow County Prosecutor’s Office, 10 Ohio St.3d 172, 2005-Ohio-685, at ¶5. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics pursuant to R.C. 4931.40 through 4931.51 may not be disclosed or used for any purpose other than as permitted by those statutes. 599 Note: Exceptions other than CLEIRs may apply to documents within a law enforcement investigative file, such as Social Security Numbers or LEADS computerized criminal history documents, 600 and information, data, and statistics gathered or disseminated through the Ohio Law Enforcement Gateway (OHLEG). 601

B. Employment Records

602

Public employee personnel records are generally regarded as public records. 603 However, if any item contained in a personnel file or other employment records 604 is not a “record” of the office, or is subject to an exception, it may be withheld. We recommend that Human Resource officers prepare a list of information and records in the office’s personnel files that are subject to withholding, including the explanation and legal authority related to each item. The office can then use this list for prompt and consistent responses to public records requests. A sample list can be found at the end of this chapter.

1. Non-Records To the extent that any item contained in a personnel file is not a “record,” i.e., does not serve to document the organization, operations, etc., of the public office, it is not a public record and need not be disclosed. 605 Based on this reasoning, the Ohio Supreme Court has found that in most instances the home addresses of public employees kept by their employers solely for administrative convenience are not “records” of the office. 606 Although Ohio case law is silent on other specific nonrecord personnel items, a public office may want to evaluate emergency telephone numbers, employee banking information, insurance beneficiary designations, and other items maintained as employment records which may not serve to document the activities of the office. Non-record items may be redacted from materials which are otherwise records.

2. Names and Dates of Birth of Public Officials and Employees “Each public office or person responsible for public records shall maintain a database or a list that includes the name and date of birth of all public officials and employees elected to or employed by that public office. The database or list is a public record and shall be made available upon a request made pursuant to section149.43 of the Revised Code.” 607

599

R.C. 4931.49(F); R.C. 4931.99(E) (providing that information from a database that serves public safety answering point of 911 system may not be disclosed). 600 O.A.C. 4501:2-10-06(B). 601 R.C. 149.57(D)(1)(b). 602 The following categories may not include all exceptions (or inclusions) which could apply to every public office’s personnel records. 603 2007 Ohio Op. Att’y Gen. No. 026; State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 143, 1995-Ohio-248; State ex rel. Ohio Patrolmen’s Benevolent Ass’n v. Mentor, 89 Ohio St.3d 440, 444, 2000-Ohio-214 (addressing police personnel records). 604 The term “personnel file” has no single definition in public records law. See State ex rel. Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006Ohio-6365, at ¶57 (inferring that “records that are the functional equivalent of personnel files exist and are in the custody of the city” where a respondent claimed that no personnel files designated by the respondent existed); Cwynar v. Jackson Twp. Bd. of Trs. (5th Dist.), 178 Ohio App.3d 345, 2008Ohio-5011, at ¶31 (finding that, where the appellant requested only the complete personnel file and not the records relating to an individual’s employment, that “[i]t is the responsibility of the person making the public records request to identify the records with reasonable clarity.”). 605 State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 367, 2000-Ohio-345; State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186, 188 (stating that “[t]o the extent that any item contained in a personnel file is not a ‘record,’ i.e., does not serve to document the organization, etc., of the public office, it is not a public record and need not be disclosed.”). 606 State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 200-Ohio-4384, at ¶39 (explaining that an employee’s home address may constitute a “record” when it documents an office policy or practice, as when the employee’s work address is also the employee’s home address). 607 R.C. 149.434. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics 3. Resumes and Application Materials There is no public records exception which generally protects resumes and application materials obtained by public offices in the hiring process. 608 The Ohio Supreme Court has found that the public has “an unquestioned public interest in the qualifications of potential applicants for positions of authority in public employment.” 609 For example, when a city board of education used a private search firm to help hire a new treasurer, it was required to disclose the names and resumes of the interviewees. 610 The fact that a public office has promised confidentiality to applicants is irrelevant. 611 A public office’s obligation to turn over application materials and resumes extends to records in the sole possession of private search firms used in the hiring process. 612 As with any other category of record, if an exception for home address, Social Security Number, or other specific item applies, it may be used to redact only the protected information. Application Materials Not “Kept By” a Public Office: Application materials may not be public records if they are not “kept by” 613 the office at the time of the request. In State ex rel. Cincinnati Enquirer v. Cincinnati Board of Education, the school board engaged a private search firm to assist in its search for a new superintendent. During the interview process, the school board members reviewed and then returned all application materials and resumes submitted by the candidates. The Enquirer made a public records request for any resumes, documents, etc., related to the superintendent search. Because no copies of the materials had been provided to the board at any time outside the interview setting and had never been “kept”, the court denied the writ of mandamus. 614 Keep in mind that this case is limited to a narrow set of facts, including compliance with records retention schedules, in returning such materials.

4. Background Investigations Background investigations are not subject to any general public records exception, 615 although specific statutes may except defined background investigation materials kept by specific public offices. 616 However, criminal history “rap sheets” obtained from the federal National Crime Information Center system (NCIC) or through the state Law Enforcement Automated Data System (LEADS) are subject to a number of statutory exceptions. 617

608

State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, at ¶41; State ex rel. Gannett v. Shirey, 78 Ohio St.3d 400, 403, 1997-Ohio-206. 609 State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, at ¶53 (including that opponents argued that disclosing these materials would prevent the best candidates from applying); but see State ex rel. The Plain Dealer Publishing Co. v. Cleveland, 75 Ohio St.3d 31, 36, 1996-Ohio-379 (providing that “it is not evident that disclosure of resumes of applicants for public offices like police chief necessarily prevents the best qualified candidates from applying.”). 610 State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311. 611 State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, at ¶46; State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 403, 1997-Ohio-206. 612 State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 403, 1997-Ohio-206. 613 For a discussion on “kept by” see Chapter One: D. “‘Public Record’ – “What ‘Kept By’ Means.” 614 State ex rel. Cincinnati Enquirer v. Cincinnati Bd. of Educ., 99 Ohio St.3d, 2003-Ohio-2260, at ¶14. 615 State ex rel. Ohio Patrolmen’s Benevolent Ass’n v. City of Mentor, 89 Ohio St.3d 440, 445, 2000-Ohio-214, citing State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 142-45, 1995-Ohio-248 (addressing all personnel, background, and investigation reports for police recruit class); Dinkins v. Ohio Div. of State Highway Patrol (N.D. Ohio 1987), 116 F.R.D. 270, 272. 616 See e.g., R.C. 113.041(E) (providing for criminal history checks of employees of the state treasurer); R.C. 109.5721(E) (providing that information of arrest or conviction received by a public office from BCI&I is retained in the applicant fingerprint database); R.C. 2151.86(E) (addressing the results of criminal history checks of children’s day care employees); R.C. 3319.39(D) (addressing the results of criminal history check of teachers). Note that statutes may also require dissemination of notice of an employee’s or volunteer’s conviction. See e.g., R.C. 109.576 (providing for notice of a volunteer’s conviction). 617 R.C. 109.57(D), (H); OAC 4501:2-10-06(B); 42 U.S.C. § 3789g; 28 C.F.R. § 20.33(a)(3); In the Matter of: C.C. (11th Dist.), 2008-Ohio-6776, at ¶¶810 (providing that there are three different analyses of the interplay between Juv. R. 37 (juvenile court records), OAC 4501:2-10-06(B) (LEADS records) and BMV statutes); Patrolman X v. Toledo (1996), 132 Ohio App.3d 381, 389; State ex rel. Nat’l Broadcasting Co. v. Cleveland (8th Dist. 1992), 82 Ohio App.3d 202, 206-7; Ingraham v. Ribar (9th Dist. 1992), 80 Ohio App.3d 29, 33-34; 1994 Ohio Op Att’y Gen. No. 046. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics 5. Evaluations and Disciplinary Records Employee evaluations are not subject to any general public records exception. 618 Likewise, records of disciplinary actions involving an employee are not excepted. 619 Specifically, the CLEIRs exception does not apply to routine office discipline or personnel matters, 620 even when such matters are the subject of an internal investigation within a law enforcement agency. 621

6. Physical Fitness, Psychiatric, and Polygraph Examinations As used in the Ohio Public Records Act, the term “medical records” is limited to records generated and maintained in the process of medical treatment (see “Medical Records” below). Accordingly, records of examinations performed for the purpose of determining fitness for hiring or for continued employment, including physical fitness, 622 psychiatric, 623 and psychological 624 examinations, are not excepted from disclosure as “medical records.” Similarly, polygraph, or “lie detector,” examinations are not “medical records,”nor do they fall under the CLEIRs exception when performed in connection with hiring. 625 Note, though, that a separate exception does apply to “medical information” pertaining to those professionals covered under R.C. 149.43(A)(7)(c). While fitness for employment records do not fit within the definition of “medical records,” they may nonetheless be excepted from disclosure under the so-called “catch all” provision of the Public Records Act as “records the release of which is prohibited by state or federal law.” 626 Specifically, the federal Americans with Disabilities Act (ADA) and its implementing regulations 627 permit employers to require employees and applicants to whom they have offered employment to undergo medical examination and/or inquiry into their ability to perform job-related functions. 628 Information regarding medical condition or history must be collected and kept on separate forms and in separate medical files, and must be treated as confidential, except as otherwise provided by the ADA. As non-public records, the examinations may constitute “confidential personal information” under Ohio’s Personal Information Systems Act. 629

7. Medical Records “Medical records” are not public records, 630 and a public office may withhold any medical records in a personnel file. As noted above, however, only those records that meet the definition of “medical records,” i.e., that are generated and maintained in the process of medical treatment, 631 may be

618

State ex rel. Medina County Gazette v. City of Brunswick (9th Dist. 1996), 109 Ohio App.3d 661, 664. State ex rel. Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, at ¶49. 620 State ex rel. Freedom Commc’n, Inc. v. Elida Cmty. Fire Co., 82 Ohio St.3d 578, 581-82, 1998-Ohio-411 (finding that an investigation of an alleged sexual assault conduct internally as a personnel matter is not a law enforcement matter). 621 State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 142, 1995-Ohio-248 (determining that personnel records of police officers reflecting the discipline of police officers are nonconfidential law enforcement investigatory records excerpted from disclosure). 622 State ex rel. Ohio Patrolmen’s Benevolent Ass’n v. Lucas County Sheriff’s Office, 7th Dist. No. L-06-1108, 2007-Ohio-101, at ¶16 (finding that a “fitness for duty evaluation” did not constitute “medical records”). 623 State of Ohio v. Hall (4th Dist.), 141 Ohio App.3d 561, 568, 2001-Ohio-4059 (finding that psychiatric reports compiled solely to assist the court with “competency to stand trail determination” were not medical records). 624 State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 143, 1995-Ohio-248 (finding that a police psychologist report obtained to assist the police hiring process is not a medical record). 625 State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 143, 1995-Ohio-248 citing State ex rel. Lorain Journal v. City of Lorain (9th Dist. 1993), 87 Ohio App.3d 112. 626 R.C. 149.43(A)(1)(v). 627 42 U.S.C. § 12112; 29 C.F.R. §§ 1630.14(b)(1), (c)(1). 628 29 CFR 1630.14(c); See also State ex rel. Mahajan v. State Med. Bd. of Ohio, 2010-Ohio-5995, at ¶44, 47 (employer’s questioning of court reporter and opposing counsel was properly redacted as inquiry into whether employee was able to perform job-related functions, as pertinent ADA provision does not limit the confidential nature of such inquiries to questions directed to employees or medical personnel). 629 R.C. 1347.15(A)(1). 630 R.C. 149.43(A)(1)(a), (A)(3). 631 R.C. 149.43(A)(3) (extends to “any document […] that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment.”); State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 1997-Ohio-349 619

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The Ohio Public Records Act Chapter Six: Special Topics withheld under this exception. Note that the federal Health Insurance Portability and Accountability Act (HIPAA), 632 does not apply to records in employer personnel files, but that the federal Family and Medical Leave Act (FMLA), 633 or the Americans With Disabilities Act (ADA) 634 may apply to medicalrelated information in personnel files.

8. School Records Education records, which include but are not limited to school transcripts, attendance records, and discipline records, that are directly related to a student and maintained by the educational institution, as well as personally identifiable information from education records, are generally protected from disclosure by the school itself through the federal Family Educational Rights and Privacy Act (FERPA). However, when a student or former student directly provides such records to a public office they are not protected by FERPA 635 and are considered public records.

9. Social Security Numbers and Taxpayer Records Social Security Numbers (SSNs) should be redacted before the disclosure of public records. 636 The Ohio Supreme Court has held that although the Federal Privacy Act (5 U.S.C. §552a) does not expressly prohibit release of one’s SSN, the Act does create an expectation of privacy as to the use and disclosure of the SSN. Ohio statutes or administrative code may provide other exceptions for SSNs for specific employees 637 or in particular locations, 638 and/or upon request. 639 Information obtained from municipal tax returns is confidential. 640 One Attorney General Opinion found that W-2 federal tax forms prepared and maintained by a township as an employer are public records. However, W-2 forms filed as part of a municipal income tax return are confidential. 641 W-4 forms are confidential pursuant to 26 U.S.C. 6103(b)(2)(A) as “return information,” which includes “data with respect to the determination of the existence of liability (or the amount thereof) of any person for any tax.”

10. Residential and Familial Information of Listed Safety Officers As detailed elsewhere in this book, the residential and familial information 642 of certain listed public employees may be withheld from disclosure. 643

11. Bargaining Agreement Provisions Courts have held that collective bargaining agreements concerning the confidentiality of records cannot prevail over the Public Records Act. For example, a union may not legally bar the production of available public records through a provision in a collective bargaining agreement. 644

(emphasizing that both parts of this conjunctive definition must be met in order to fall under the medical records exception: “a record must pertain to a medical diagnosis and be generated and maintained in the process of medical treatment.”). 632 See 45 C.F.R. §§ 160 et seq.; 45 C.F.R. §§ 164 et seq. 633 See 29 U.S.C. §§ 2601 et seq. 634 See 42 U.S.C. §§ 12101 et seq. 635 20 U.S.C. § 1232g. 636 State ex rel. Beacon Journal Publ’g Co. v. Akron, 70 Ohio St.3d 605, 612, 1994-Ohio-6 (noting that there is a “high potential for fraud and victimization caused by the unchecked release of city employee SSNs”); see also Chapter Three: G. “Exceptions created by other Laws, 5. Social Security Numbers.” 637 See e.g., R.C. 149.43(A)(1)(p), (7)(c) (protecting residential and familiar information of certain covered professionals); see also R.C. 149.45(D)(1). 638 R.C. 149.45(B)(1) (providing that no public office or person responsible for a public office’s public records shall make available to the general public on the internet any document that contains an individual’s SSN without otherwise redacting, encrypting, or truncating the SSN). 639 R.C. 149.45(C)(1) (providing that an individual any request that a public office or a person responsible for a public office’s public records redact personal information of that individual from any record made available to the general public on the internet). 640 R.C. 718.13; see also Reno v. City of Centerville, 2nd Dist. No. 20078, 2004-Ohio-781. 641 1992 Ohio Op. Att’y Gen. No. 005. 642 R.C. 149.43(A)(7). 643 R.C. 149.43(A)(1)(p). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics 12. Statutes Specific to a Particular Agency’s Employees Statutes protect particular information or records concerning specific public offices, or particular employees 645 within one or more agencies. 646

Personnel Files Items from personnel files that are subject to release with appropriate redaction  Payroll records  Timesheets  Employment application forms  Resumes  Training course certificates  Position descriptions  Performance evaluations  Leave conversion forms  Letters of support or complaint  Forms documenting receipt of office policies, directives, etc.  Forms documenting hiring, promotions, job classification changes, separation, etc.  Background checks, other than LEADS throughput, NCIC and CCH  Disciplinary investigation/action records, unless exempt from disclosure by law

Items from personnel files that may or must be withheld  Social Security Numbers (based on the federal Privacy Act: 5 USC §552a)  Public employee home addresses, generally (as non-record)  Residential and familial information of a peace officer, parole officer, prosecuting attorney,

       

assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or BCI&I investigator, other than residence address of prosecutor (See O.R.C. 149.43 (A)(1)(p)) Charitable deductions and employment benefit deductions such as health insurance (as non-records) Beneficiary information (as non-record) Federal tax returns and “return information” filed under the jurisdiction of the IRS (26 USC §6103) Personal history information of state retirement contributors (R.C. 145.27(A); R.C. 742.41(A); R.C. 3307.20(A); R.C. 3309.22; R.C. 5505.04(C)) Taxpayer records maintained by Ohio Dept. of Taxation and by municipal corporations (RC 5703.21; RC 718.13) “Medical records” that are generated and maintained in the process of medical treatment (RC 149.43(A)(1)(a) and (A)(3)) LEADS, NCIC or CCH criminal record information (42 USC §3789g; 28 CFR §20.21, §20.33(a)(3); ORC 109.57(D) & (E); OAC 109:05-1-01; OAC 4501:2-10-06) Records of open internal EEO investigations (discretionarily exempt as Confidential Law Enforcement Investigatory Records under RC 149.43(A)(1)(h) if conducted pursuant to OAC Rule 123:1-49)

644

State ex rel. Dispatch Printing Co. v. City of Columbus, 90 Ohio St.3d 39, 40-43, 2000-Ohio-8 (determining that the FOP could not legally bar the production of available public records through a records disposition provision in a collective bargaining agreement); State ex rel. Dispatch Printing Co. v. Wells (1995), 18 Ohio St.3d 382, 384. 645 E.g., R.C. 149.43(A)(7) (Covered Professionals’ Residential and Familial Information); R.C. 149.43(A)(7)(g) (photograph of a peace officer who works undercover or plainsclothes assignments). 646 E.g., R.C. 2151.142 (providing for confidentiality of residential address of public children services agency or private child placing agency personnel). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics C. Residential and Familial Information of Covered Professions that are not Public Records

647

Residential and Familial Information Defined: 648 The “residential and familial information” of peace officers, 649 parole officers, prosecuting attorneys, assistant prosecuting attorneys, 650 correctional employees, 651 youth services employees, 652 firefighters, 653 or emergency medical technicians (EMTs), 654 and investigators of the Bureau of Criminal Identification and Investigation is excepted from mandatory disclosure under the Ohio Public Records Act. 655 “Residential and familial information” means any information that discloses any of the following about individuals in the listed employment categories (see following chart):

647

Individuals in these covered professions can also request to have certain information redacted, or prohibit its disclosure. For additional discussion, see Chapter Three: F. “Exceptions Affecting Personal Privacy – 2. Personal Information Listed Online.” 648 For purposes of this section, “covered professions” is the term used to describe all of the persons covered under the residential and familial exception (i.e. peace officer, firefighter, etc.). 649 R.C. 149.43(A)(7); For purposes of this statute, “peace officer” has the same meaning as in R.C. 109.71 and also includes the superintendent and troopers of the state highway patrol; it does not include the sheriff of a county or a supervisory employee who, in the absence of the sheriff, is authorized to stand in for, exercise the authority of, and perform the duties of the sheriff, R.C. 149.43(A)(7)(g). 650 State ex rel. Bardwell v. Rocky River Police Dept., 8th Dist. No. 91022, 2009-Ohio-727, at ¶¶31-46 (providing that the home address of an elected law director who at times serves as a prosecutor is not a public record, pursuant to R.C. 149.43(A)(1)(p) in conjunction with (7)(a)). 651 R.C. 149.43(A)(7)(g) (providing that “[a]s used in divisions (A)(7) and (B)(5) of this section, ‘correctional employee’ means any employee of the department of rehabilitation and correction who in the course of performing the employee’s job duties has or has had contact with inmates and persons under supervision.”). 652 R.C. 149.43(A)(7)(g) (providing that “[a]s used in divisions (A)(7) and (B)(5) of this section, ‘youth services employee’ means any employee of the department of youth services who in the course of performing the employee’s job duties has or has had contact with children committed to the custody of the department of youth services.”). 653 R.C. 149.43(A)(7)(g) (providing that “[a]s used in divisions (A)(7) and (B)(9) of this section, ‘firefighter’ means any regular, paid or volunteer, member of a lawfully constituted fire department of a municipal corporation, township, fire district, or village.”). 654 R.C. 149.43(A)(7)(g): “[a]s used in divisions (A)(7) and (B)(9) of this section, ‘EMT’ means EMTs-basic, EMTs-I, and paramedic that provide emergency medical services for a public emergency medical service organization. ‘Emergency medical service organization,’ ‘EMT-basic,’ ‘EMT-I,’ and ‘paramedic’ have the same meanings as in section 4765.01 of the Revised Code.” 655 R.C. 149.43(A)(1)(p), (A)(7). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics Information That Is Not Public Record

(*Peace Officer, Parole Officer, Prosecuting Attorney, Assistant Prosecuting Attorney, Correctional Employee, Youth Services Employee, Firefighter, EMT or investigator of the Bureau of Criminal Identification and Investigation 656 )

Residential

 Address of the covered employee’s actual personal residence, except for state or political subdivision; residential phone number, and emergency phone number 657  Residential address, residential phone number, and emergency phone number of the spouse, former spouse, or child of a covered employee 658

Medical

 Any information of a covered employee that is compiled from referral to or participation in an employee assistance program 659  Any medical information of a covered employee 660

Employment

 The name of any beneficiary of employment benefits, of a covered employee, including, but not limited to, life insurance benefits 661  The identity and amount of any charitable or employment benefit deduction of a covered employee 662  A photograph of a peace officer who holds a position that may include undercover or plain clothes positions or assignments 663

Personal

The information below, which is not a public record, applies to both a covered employee and spouse, former spouse, or children  Social Security Number 664  Account numbers of bank accounts and debit, charge, and credit cards 665 The information below, which is not a public record, applies to only a covered employee’s spouse, former spouse, or children  Name of employer, address of employer 666

656

R.C. 2151.142(B), (C) (providing that, in addition to the “covered professions” listed above, that certain residential addresses of employees of a public children services agency or private child placing agency and that employee’s family members are exempt from disclosure). R.C. 149.43(A)(7)(a), and (c). Because prosecuting attorneys are elected officials, the actual personal residential address of elected prosecuting attorneys is not excepted from disclosure. Sub. H.B. No. 141 (126th GA). Please note that the online versions of Chapter 149 incorrectly include prosecuting attorneys in R.C. 149.43(A)(7)(a). 658 R.C. 149.43(A)(7)(f). 659 R.C. 149.43(A)(7)(b). 660 R.C. 149.43(A)(7)(c). 661 R.C. 149.43(A)(7)(d). 662 R.C. 149.43(A)(7)(e). 663 R.C. 149.43(A)(7)(g); State ex rel. Plain Dealer Publ’g Co. v. City of Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807, at ¶¶25-57 (providing that police officer photographs were exempt from disclosure under the Ohio Public Records Act because they constituted “peace officer residential and familial information”). 664 R.C. 149.43(A)(7)(f). 665 R.C. 149.43(A)(7)(f). 666 R.C. 149.43(A)(7)(f). 657

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The Ohio Public Records Act Chapter Six: Special Topics D. Court Records Although records kept by the courts of Ohio meet the definition of public records under the Ohio Public Records Act), most court records are subject to additional rules concerning access.

1. Courts’ Supervisory Power Over Their Own Records Ohio courts 667 are subject to the Rules of Superintendence for the Courts of Ohio, 668 adopted by the Supreme Court of Ohio. The Rules of Superintendence establish rights and duties regarding court case documents and administrative documents, starting with the statement that “[c]ourt records are presumed open to public access.” Sup. R. 45(A). While similar to the Ohio Public Records Act, the Rules of Superintendence contain some additional or different provisions, including language: 

Allowing courts to adopt a policy limiting the number of records they will release per month unless the requestor certifies that there is no intended commercial use. Sup. R. 45(B)(3).



For Internet records, allowing courts to announce that a large attachment or exhibit was not scanned but is available by direct access. Sup. R. 45(C)(1).



Establishing definitions of “court record,” “case document,” “administrative document,” “case file,” and other terms. Sup. R. 44(A) through (M).



A process for the sealing of part or all of any case document, including a process for any person to request access to a case document or information that has been granted limited public access. Sup. R. 45(F).



Requiring that documents filed with the court omit or redact personal identifiers that might contribute to identity theft. The personal identifiers would instead be submitted on a separate standard form submitted only to the court, clerk of courts and parties. Sup. R. 45(D).

(this is a partial list – see Sup. Rules 44-47 for all provisions.) The provisions of Rules 44 through 47 of the Rules of Superintendence apply to all court administrative documents, but only apply to court case documents in actions commenced on or after the effective date of the rule. 669 The Rules of Superintendence for the Courts of Ohio are currently available online at: http://www.sconet.state.oh.us/LegalResources/Rules/superintendence/Superintendence.pdf.

2. Rules of Court Procedure Rules of Procedure, which are also adopted through the Ohio Supreme Court, can create exceptions to public record disclosure. 670 Examples include certain records related to grand jury proceedings, 671 and most juvenile court records. 672

3. Sealing Statutes Where court records have been properly expunged or sealed, they are not available for public disclosure. 673 Even absent statutory authority, trial courts have the inherent authority to seal court 667

Sup. R. 1(B) (defining county courts, municipal courts, courts of common pleas, and courts of appeals). Rules of Superintendence for the Courts of Ohio are cited as “Sup. R. n.” 669 Sup. R. 47(A); Sup. R. 99. 670 State ex rel. Beacon Journal v. Waters, 67 Ohio St.3d 321, 323, 1993-Ohio-77. 671 Ohio R. Crim. Pro. 6(E); State ex rel. Beacon Journal v. Waters, 67 Ohio St.3d 321, 323-25, 1993-Ohio-77. 672 Ohio R. Juv. Pro. 37(B). 673 R.C. 2953.31, et seq. (conviction of first-time offenders); R.C. 2953.51, et seq. (findings of not guilty, or dismissal); State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, at ¶¶12-13 (“Winkler III”) (affirming the trial court’s sealing order per R.C. 2953.52); Dream Fields, LLC v. Bogart (1st Dist.), 175 Ohio App.3d 165, 2008-Ohio-152, at ¶3 (providing that “[u]nless a court record contains information that is excluded from being a public record under R.C. 149.43, it shall not be sealed and shall be available for public inspection. And the party wishing to seal the record has 668

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The Ohio Public Records Act Chapter Six: Special Topics records in unusual and exceptional circumstances. 674 When exercising this authority, however, courts should balance the individual’s privacy interest against the government’s legitimate need to provide public access to records of criminal proceedings. 675

4. Non-Records As with any public office, courts are not obligated to provide documents that are not “records” of the court. Examples include a judge’s handwritten notes, 676 completed juror questionnaires, 677 Social Security Numbers in certain court records, 678 and unsolicited letters sent to a judge. 679

5. General Court Records Retention See Sup. R. 26 governing Court Records Management and Retention, and the following Rules setting records retention schedules for each type of court, Sup. R. 26.01 through Sup. R. 26.05. Other Case Law Prior to Rules of Superintendence Constitutional Right of Access: Based on constitutional principles, and separate from the public records statute, Ohio common law grants the public a presumptive right to inspect and copy court records. 680 Both the United States and the Ohio Constitutions create a qualified right 681 of public access to court proceedings that have historically been open to the public and in which the public’s access plays a significantly positive role. 682 This qualified right includes access to the live proceedings, as well as to the records of the proceedings. 683 Even where proceedings are not historically public, the Ohio Supreme Court has determined that “any restriction shielding court records from public scrutiny should be narrowly tailored to serve the competing interests of protecting the individual’s privacy without unduly burdening the public’s right of access.” 684 This high standard exists because the purpose of this common-law right “is to promote understanding of the legal system and to assure public confidence in the courts.” 685 But, the constitutional right of public access is not absolute, and courts have traditionally exercised “supervisory power over their own records and files.” 686

the duty to show that a statutory exclusion applies […] [j]ust because the parties have agreed that they want the records sealed is not enough to justify the sealing.”). 674 Pepper Pike v. Doe (1981), 66 Ohio St.2d 374; but see State ex rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952, at ¶1 (finding that divorce records are not properly sealed when the order results from “unwritten and informal court policy”). 675 Pepper Pike v. Doe (1981), 66 Ohio St.3d 374, at ¶2 syllabus. 676 State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 429-41, 1993-Ohio-32 (noting that “[a] trial judge’s personal handwritten notes made during the course of a trial are not public records.”). 677 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, at ¶25 (providing that the personal information of jurors used only to verify identification, not to determine competency to serve on the jury, such as SSNs, telephone numbers, and driver’s license numbers may be redacted). 678 State ex rel. Montgomery County Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, at ¶18 (finding that SSNs in court records do not “shed light on any government activity”). 679 State ex rel. Beacon Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 62-64, 1998-Ohio-180 (finding that where a judge read unsolicited letters but did not rely on them in sentencing, the letters did not serve to document any activity of the public office and were not “records”). 680 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117; State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St. 3d 382, 2004-Ohio-1581, at ¶¶2-7 (“Winkler III”) (citations omitted); State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga County Ct. of Common Pleas (1995), 73 Ohio St.3d 19, 22. 681 State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, at ¶9 (“Winkler III”) (providing that “[t]he right, however, is not absolute.”). 682 State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga County Court of Common Pleas (1995), 73 Ohio St.3d 19, 20, citing In re. T.R. (1990), 52 Ohio St.3d 6, at ¶2 syllabus; Press-Enterprise Co. v. Superior Ct. (1986), 478 U.S. 1 (“Press-Enterprise II”). 683 State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581 (“Winkler III”); State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga County Court of Common Pleas (1995), 73 Ohio St.3d 19, 21 (citations omitted). 684 State ex rel. Cincinnati Enquirer v. Winkler (1st Dist.), 149 Ohio App.3d 350, 354, 2002-Ohio-4803 (“Winkler I”) citing State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga County Court of Common Pleas (1995), 73 Ohio St.3d 19, 21. 685 State ex rel. Cincinnati Enquirer v. Winkler (1st Dist.), 149 Ohio App.3d 350, 354, 2002-Ohio-4803 (“Winkler I”). 686 State ex rel. Cincinnati Enquirer v. Winkler (1st Dist.), 149 Ohio App.3d 350, 354-55, 2002-Ohio-4803 (“Winkler I”). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Public Records Act Chapter Six: Special Topics The Ohio Public Records Act applies to court records. 687 Once an otherwise non-public document is filed with the court (such as pretrial discovery material), that document becomes a public record when it becomes part of the court record. 688 However, in circumstances where the release of the court records would prejudice the rights of the parties in an ongoing criminal or civil proceeding, a narrow exception to public access exists. 689 Under such circumstances, the court may impose a protective order prohibiting release of the records. 690 Constitutional Access and Statutory Access Compared: The Ohio Supreme Court has distinguished between (1) public records access and (2) constitutional access to jurors’ names and home addresses and other personal information contained in their responses to written juror questionnaires. 691 While such information is not a “public record,” 692 it is presumed to be subject to public disclosure based on constitutional principles. 693 The Court explained that the personal information of these private citizens is not “public record” because it does nothing to “shed light” on the operations of the court. 694 However, there is a constitutional presumption that this information will be publicly accessible in criminal proceedings. 695 As a result, the jurors’ personal information will be publicly accessible unless there is an “overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” 696 Nevertheless, the Ohio Supreme Court also concluded, in a unanimous decision, that Social Security Numbers contained in criminal case files are appropriately redacted before public disclosure. 697 According to the Court, permitting the court clerk to redact SSNs before disclosing court records “does not contravene the purpose of the Public Records Act, which is ‘to expose government activity to public scrutiny.’ Revealing individuals’ Social Security Numbers that are contained in criminal records does not shed light on any government activity.” 698

687

State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, at ¶5 (“Winkler III”) (providing that “it is apparent that court records fall within the broad definition of ‘public record.’”). State ex rel. Cincinnati Enquirer v. Dinkelacker (1st Dist. 2001), 144 Ohio App.3d 725, 730. 689 State ex rel. Vindicator Printing Co. v. Watkins (1993), 66 Ohio St.3d 129, 137-39 (prohibiting disclosure of pretrial court records prejudicing rights of criminal defendant) (overruled on other grounds); but see State ex rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952, at ¶¶9-22 (finding that a pending appeal from a court order unsealing divorce records does not preclude a writ of mandamus claim). 690 State ex rel. Cincinnati Enquirer v. Dinkelacker (1st Dist. 2001), 144 Ohio App.3d 725, 730. (finding that a trial judge was required to determine whether the release of records would jeopardize the defendant’s right to a fair trial). 691 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117. 692 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, at ¶1 syllabus (finding that juror names, addresses, and questionnaire responses are not “public records” because the information does not shed light on the court’s operations). 693 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117 at ¶2 syllabus (determining that the First Amendment qualified right of access extends to juror names, addresses, and questionnaire response). 694 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117 citing State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 2000-Ohio-345; see also State ex rel. Montgomery County Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, at ¶18 (determining that SSNs in court records do not “shed light on any governmental activity”). 695 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117. 696 State ex rel. Beacon Journal Publ’g Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, at ¶2 syllabus quoting Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 510 (internal citations omitted); see also 2004 Ohio Op. Att’y Gen. No. 045 (restricting public access to information in a criminal case file may be accomplished only where concealment “is essential to preserve higher values and is narrowly tailored to serve an overriding interest”). 697 State ex rel. Montgomery County Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662. 698 State ex rel. Montgomery County Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662. 688

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The Ohio Public Records Act Chapter Six: Special Topics E. HIPAA & HITECH Regulations implementing the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) became fully effective in April 2003. Among the regulations written to implement HIPAA was the “Privacy Rule,” which is a collection of federal regulations seeking to maintain the confidentiality of individually identifiable health information. 699 For some public offices, the Privacy Rule and HITECH 700 affect the manner in which they respond to public records requests.

1. HIPAA Definitions The Privacy Rule protects all individually identifiable health information, which is called “protected health information” or “PHI.” 701 PHI is information that could reasonably lead to the identification of an individual, either by itself or in combination with other reasonably available information. 702 The HIPAA regulations apply to the three “covered entities” 703 listed below: a. Healthcare provider: Generally, a “healthcare provider” is any entity providing mental or health services that electronically transmits individually identifiable health information for any financial or administrative purpose subject to HIPAA. b. A health plan: A “health plan” is an individual or group plan that provides or pays the cost of medical care, such as an HMO. c. Healthcare clearinghouse: A “healthcare clearinghouse” is any entity that processes health information from one format into another for particular purposes, such as a billing service. Legal counsel should be consulted if there is uncertainty about whether or not a particular public office is a “covered entity” or “business associate” of a covered entity for purposes of HIPAA.

2. HIPAA Does Not Apply Where Ohio Public Records Act Requires Release The Privacy Rule permits a covered entity to use and disclose protected health information as required by other law, including state law. 704 Thus, where state public records law mandates that a covered entity disclose protected health information, the covered entity is permitted by the Privacy Rule to make the disclosure, provided the disclosure complies with and is limited to the relevant requirements of the public records law. 705 For this purpose, note that the Ohio Public Records Act only mandates disclosure when no other exception applies. So, where public records law only permits, and does not mandate, the disclosure of protected health information - where exceptions or other qualifications apply to exempt the protected health information from the state law’s disclosure requirement - then such disclosures are not “required by law” and would not fall within the Privacy Rule. For example, if state public records law includes an exception that affords a state agency discretion not to disclose medical 706 or other information, the disclosure of such records is not required by the public records law, and therefore the Privacy Rule would cover those records. 707 In such cases, a covered entity only would be able to make the disclosure if permitted by another provision of the Privacy Rule. In a 2006 case where no other public records exception applied to the subject records, the Ohio Supreme Court held: “[a] review of HIPAA reveals a “required by law” exception to the prohibition against disclosure of protected health information. With respect to this position, Section 164.512(a)(1), Title 45, C.F.R., provides, “A 699

45 C.F.R. §§ 160 et seq.; 45 C.F.R. §§ 164 et seq. Health Information Technology Economic Clinical Health Act, Public Law No. 111-5, Division A, Title XIII, Subtitle D (2009). 45 C.F.R. § 160.103. 702 45 C.F.R. § 160.103. 703 45 C.F.R. § 160.103. 704 45 C.F.R. § 164.512(a). 705 65 F.R. § 82485; see http://www.hhs.gov/hipaafaq/permitted/require/506.html (last visited Dec. 14, 2010). 706 E.g. R.C. 149.43(A)(1)(a) (providing for an exception for state “medical records”). 707 45 C.F.R. § 164.512(a). 700 701

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The Ohio Public Records Act Chapter Six: Special Topics covered entity may * * * disclose protected health information to the extent that such * * *disclosure is required by law * * *.” (Emphasis added). And the Ohio Public Records Act requires disclosure of records unless the disclosure or release is prohibited by federal law. R.C. 149.43(A (1)(v).” 708 The Court found the interaction of the federal and state law somewhat circular, but resolved it in favor of disclosure under the Ohio Public Records Act. 709 Based on the “required by law” exception described above, the remaining applications of HIPAA, below, are either HIPAA’s own exceptions to its application, or are conditioned on the existence of another non-HIPAA exception before HIPAA will apply to the subject records.

3. PHI in Personnel Files HIPAA privacy restrictions do not affect the release of PHI in employment records held by a covered entity in its sole role as an employer. 710 When handling a public records request, a covered entity need not necessarily redact PHI from the personnel file or obtain the employee’s authorization before releasing the records. However, other state and/or federal catch-all exceptions requiring redaction of the same information may still apply. 711

4. PHI in Law Enforcement Investigations Basically, where the PHI is necessary to further a legitimate law enforcement purpose, a covered entity may release PHI to law enforcement officials without the patient’s prior authorization. 712 Specifically, the situations in which such release is permissible are as follows: (1) where state or federal law requires the release, including a valid court order, warrant, or subpoena; (2) to identify or locate a suspect, fugitive, material witness, or missing person; (3) when a crime victim is unable to consent, the PHI is needed to determine whether a crime has been committed, the PHI will not be used against the victim, the investigation will be materially and adversely affected by waiting for the victim to consent, and the covered entity determines, in its professional judgment, that release will serve the victim’s best interests; (4) when a crime is suspected in a person’s death; (5) where the PHI constitutes evidence of a crime that occurred on the covered entity’s premises; (6) in an emergency if necessary to alert law enforcement to the commission of a crime, the location of the crime or the victims, and the identity, description, or location of the alleged perpetrator. 713

5. PHI in Dispatch Calls A covered entity, such as an EMS organization, may disclose PHI where disclosure is necessary to prevent or lessen a serious and imminent threat to the safety and health of an individual or the public and disclosure is made to persons reasonably able to prevent or lessen the threat, including the target of the threat if appropriate. 714 For example, police and EMS calls that disclose a patient’s medical condition in order to dispatch appropriate medical or emergency assistance do not violate HIPAA’s Privacy Rule. 715

708

State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518, 2006-Ohio-1215, at ¶25. State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518, 2006-Ohio-1215, at ¶¶26, 34. 710 45 C.F.R. § 160.103. 711 See Chapter Three: E. “Exceptions Enumerated in the Public Records Act – (v) ‘Records the release of which is prohibited by state or federal law.’” 712 45 C.F.R. § 164.512(f). 713 45 C.F.R. § 164.512(f). 714 45 C.F.R. § 164.512(j). 715 45 C.F.R. § 164.512(j). 709

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The Ohio Public Records Act Chapter Six: Special Topics 6. PHI Disclosure for Health Care Operations A covered entity may disclose PHI for the purpose of performing its health care operations such as treatment of patients or collection of payments. 716 But a covered entity must restrict the scope of any and all disclosures to the minimum necessary to accomplish the intended purpose. 717

7. PHI in Directory Information A covered entity may release directory information to members of the public who call and identify the patient by name, but the individual must be given the opportunity to restrict or opt out of such directory disclosures prior to the disclosure or use. 718 “Directory information” includes a medical patient’s full name, location in the medical facility, and a description of the patient’s general condition that does not communicate specific information. 719 In an emergency situation, when patients are unable to object to disclosure of their directory information or it is not practicable to offer the patient the opportunity to do so, the covered entity may disclose directory information if it determines that disclosure is in the patient’s best interest. 720 Any such disclosure must be consistent with the patient’s known preferences, and the patient must be given the opportunity to opt-out of the disclosure as soon as practicable. 721

Additional Resources: The HITECH Act of 2009, effective on February 17, 2010, materially affects privacy and security of PHI. More information about HITECH is available at www.OhioAttorneyGeneral.gov/Sunshine.

716

45 C.F.R. § 164.506; but see 45 C.F.R. § 164.508(a)(2),(3) (providing for uses and disclosures of psychotherapy notes and PHI for marketing purposes may require prior authorization from the subject of the PPHI). 717 45 C.F.R. § 164.502(b). 718 45 C.F.R. § 164.510(a)(2). 719 45 C.F.R. § 164.510(a)(1). 720 45 C.F.R. § 164.510(a)(3); see also 45 C.F.R. § 164.510(a)(1). 721 45 C.F.R. § 164.510(a)(3); see also 45 C.F.R. § 164.510(a)(1). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Open Meetings Act Overview of the Ohio Open Meetings Act The Ohio Open Meetings Act requires public bodies in Ohio to conduct all official business in open meetings that the public may attend and observe. Public bodies must provide advance notice to the public indicating when and where each meeting will take place, and in the case of special meetings, the specific topics that will be discussed. Full and accurate minutes of the meetings must be taken and made available to the public, except in the case of permissible closed-door sessions. Closed-door sessions, or executive sessions, are convened by a public body after a vote, and attended by only the members of the public body and persons they invite. Executive sessions may be held for only a few specific purposes, and no vote or other decision on the matter(s) discussed may take place during the executive session. If any person believes that a public body has violated the Ohio Open Meetings Act, that person may file an injunctive action in the common pleas court to compel the public body to obey the Act. If an injunction is issued, the public body must correct its actions and pay court costs, a fine of $500, and reasonable attorney fees that are subject to possible reduction by the court. If the court does not issue an injunction, and the court finds that the lawsuit was frivolous, it may order the person who filed the suit to pay the public body’s court costs and reasonable attorney fees. Any action taken by a public body while that body is in violation of the Ohio Open Meetings Act is invalid. A member of a public body who violates an injunction imposed for a violation of the Ohio Open Meetings Act may be subject to removal from office. Like the Ohio Public Records Act, the Ohio Open Meetings Act is intended to be read broadly in favor of openness. However, while they share an underlying intent and may both apply in a given set of circumstances, the terms and definitions of the two laws are not interchangeable: the Ohio Public Records Act applies to the records of public offices; the Ohio Open Meetings Act addresses meetings of public bodies.

A Note about Case Law When the Ohio Supreme Court issues a decision interpreting laws passed by the General Assembly, that decision becomes part of a boy of case law that must be followed by courts throughout the state. Ohio Supreme Court decisions involving the Ohio Public Records Act are plentiful, because a person aggrieved by an alleged violation may initiate a legal action at any level of the judicial system: common pleas court, court of appeals, or Ohio Supreme Court. By contrast, an action to enforce the Ohio Open Meetings Act must be initiated in a court of common pleas. Common pleas decisions in Open Meetings Act cases are often appeals, but rarely reach the Ohio Supreme Court. Consequently, the bulk of case law on this topic comes from courts of appeal. Their opinions are binding on lower courts within their district, and instructive to other courts in determining how to interpret the Ohio Open Meetings Act.

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The Ohio Open Meetings Act Chapter One: “Public Body” and “Meeting” Defined I. Chapter One: “Public Body” and “Meeting” Defined Only a “public body” is required to comply with the Ohio Open Meetings Act and conduct its business in open “meetings.” A “meeting” is defined as any prearranged gathering of a public body by a majority of its members to discuss public business. 722 We begin by defining which governmental entities are, and are not, “public bodies” under the Act.

A. “Public Body” 1. Statutory Definition –R.C. 121.22 (B)(1) The Ohio Open Meetings Act defines a “public body” as: a. Any board, commission, committee, council, or similar decision-making body of a state agency, institution, or authority, and any legislative authority or board, commission, committee, council, agency, authority, or similar decision-making body of any county, township, municipal corporation, school district, or other political subdivision or local public institution; 723 b. Any committee or subcommittee thereof; 724 or

c.

A court of jurisdiction of a sanitary district organized wholly for the purpose of providing a water supply for domestic, municipal, and public use when meeting for the purpose of the appointment, removal, or reappointment of a member of the board of directors of such a district or for any other matter related to such a district other than litigation involving the district. 725

2. Identifying Public Bodies The term “public body” applies to many different decision-making bodies at the state and local level. Where it is unclear, Ohio courts have applied several factors in determining what constitutes a “public body” for purposes of the Ohio Open Meetings Act, including: a. The name or official title of the entity; 726 b. The membership composition of the entity; 727 c.

Whether the entity engages in decision-making; 728

d. Whom the entity advises or to whom it reports; 729 and e. The manner in which the entity was created. 730

722

R.C. 121.22(B)(2). R.C. 121.22(B)(1)(a). 724 R.C. 121.22(B)(1)(b); State ex rel. long v. Council for Cardington, 92 Ohio St.3d 54, 58-59, 2001-Ohio-130 (providing that “R.C. 121.22(B)(1)(b) includes any committee or subcommittee of a legislative authority of a political subdivision, e.g., a village council, as a ‘public body’ for purposes of the Sunshine Law, so that the council’s personnel and finance committees constitute public bodies in that context.”). 725 R.C. 121.22(B)(1)(c). NOTE: R.C. 121.22(G) prohibits executive sessions for public bodies defined in R.C. 121.22(B)(1)(c). 726 Wheeling Corp. v. Columbus & Ohio River R.R. Co. (10th Dist.), 147 Ohio App.3d 460, 2001-Ohio-8751, at ¶62 (determining that a Selection Committee was a “public body” and noting that it was relevant that the entity was called a “committee,” a term included in the definition of a “public body” in R.C. 121.22); Stegall v. Joint Twp. Dist. Mem’l Hosp. (3d Dist. 1985), 20 Ohio App.3d 100, 103 (considering it pertinent whether an entity is one of those listed in R.C. 121.22(B)91)). 727 Wheeling Corp. v. Columbus & Ohio River R.R. Co. (10th Dist.), 147 Ohio App.3d 460, 2001-Ohio-8751, at ¶62 (finding it relevant that a majority of the Selection Committee’s members were commissioners of the commission itself). 728 Thomas v. White (9th Dist. 1992), 85 Ohio App.3d 410, 412 (determining that tasks such as making recommendations and advising involve decision-making); Cincinnati Enquirer v. Cincinnati (1st Dist. 2001), 145 Ohio App.3d 335, 339 (determining whether an urban design review board, a group of architectural consultants for the city, had ultimate authority to decide matters was not controlling; the board actually made decisions in the process of formulating its advice); Wheeling Corp. v. Columbus & Ohio River R.R. Co. (10th Dist.), 147 Ohio App.3d 460, 2001-Ohio-8751, at ¶62 (determining that, in its role of reviewing and evaluating proposals and making a recommendation to the Ohio Rail Development Commission, the Selection Committee made decisions). 729 Cincinnati Enquirer v. Cincinnati (1st Dist. 2001), 145 Ohio App.3d 335, 339 (finding that an urban design review board advised not only the city manager, but also the city council, a public body). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual Page 78 723

The Ohio Open Meetings Act Chapter One: “Public Body” and “Meeting” Defined 3. Close-up - Applying the definition of “public body” While there is limited Ohio Supreme Court case law interpreting the Ohio Open Meetings Act, decisions from Ohio courts of appeals are instructive in determining how to apply the Act’s provisions. Using the above factors, the following types of entities have been found to be public bodies: 

A selection committee established on a temporary basis by a state agency for the purpose of evaluating responses to a request for proposals and making a recommendation to a commission. 731



An urban design review board that provides advice and recommendations to a city manager and city council about land development. 732



A board of hospital governors of a joint township district hospital. 733



A citizens’ advisory committee of a county children services board. 734



A board of directors of a county agricultural society. 735

Courts have found that the Ohio Open Meetings Act does not apply to individual public officials (as opposed to public bodies) or to meetings held by individual officials. 736 Moreover, if an individual public official creates a group solely pursuant to his or her executive authority or as a delegation of that authority, the Ohio Open Meetings Act probably does not apply to the group’s gatherings. 737 However, at least one court has determined that a selection committee whose members were appointed by the chair of a public body, not by formal action of the body, is nevertheless itself a public body and subject to the Open Meetings Act. 738

730

Beacon Journal Publ. Co. v. Akron (1965), 3 Ohio St.2d 191 (boards and commissions created by law (e.g., ordinance or statute) are controlled by the provisions of that enactment in the conduct of their meetings; however, those created by executive order of individual officials are not.); Wheeling Corp. v. Columbus & Ohio River R.R. Co. (10th Dist.), 147 Ohio App.3d 460, 2001-Ohio-8751, at ¶62 (noting that the fact that the Selection Committee was established by the committee without formal action is immaterial and that the Open Meetings Act is not intended to allow a public body to informally establish committees that are not subject to the law). 731 Wheeling Corp. v. Columbus & Ohio River R.R. Co. (10th Dist.), 147 Ohio App.3d 460, 2001-Ohio-8751, at ¶62 (finding it relevant that the group was called a “committee,’ a term included in the definition of a “public body” in R.C. 121.22, and that a majority of the Selection Committee’s members were commissioners of the commission itself; in its role of reviewing and evaluating proposals and making a recommendation to the Ohio Rail Development Commission (a public body), the Selection Committee made decisions; the fact that the Selection Committee was established by the committee without formal action is immaterial). 732 Cincinnati Enquirer v. Cincinnati (1st Dist. 2001), 145 Ohio App.3d 335, 339 (determining that where an urban design review board, a group of architectural consultants for the city, had ultimate authority to decide matters was not controlling, as the board actually made decisions in the process of formulating its advice; the board advised not only the city manager, but also the city council, a public body). 733 Stegall v. Joint Twp. Dist. Mem’l Hosp. (3d Dist. 1985), 20 Ohio App.3d 100, 102-103 (finding that the Board of Governors of a joint township hospital fell within the definition of “public body” because definition includes “boards”; further, the board made decisions essential to the construction and equipping of a general hospital and the board was of a “township” or of a “local public institution” because it existed by virtue of authority granted by the legislature for the creation of joint township hospital facilities). 734 Thomas v. White (9th Dist. 1992), 85 Ohio App.3d 410, 412; The subject matter of the committee’s operations is the public business, and each of its duties involves decisions as to what will be done. Moreover, the committee by law elects a chairman who serves as an ex officio voting member of the children services board, which involves decision making. 735 1992 Ohio Op. Att’y Gen. No. 078 (opining that the board of directors of a county agricultural society is a public body subject to the open meetings requirements of R.C. 121.22); see also Greene County Agric. Soc’y v. Liming, 89 Ohio St.3d 551, 2000-Ohio-486, at syllabus (deeming a county agricultural society to be a political subdivision pursuant to R.C. 2744.01(F)). 736 Smith v. City of Cleveland (8th Dist. 1994), 94 Ohio App.3d 780, 784-85 (finding that a city safety director is not a public body, and may conduct disciplinary hearings without complying with the Open Meeting Act). 737 Beacon Journal Publ’g Co. v. City of Akron (1965), 3 Ohio St.2d 191 (finding that boards, commissions, committees, etc., created by executive order of the mayor and chief administrator without the advice and consent of city council were not subject to the Open Meetings Act); eFunds v. Ohio Dept. of Job & Family Serv. (Mar. 6, 2006), C.P. Franklin No. 05CVH09-10276, unreported (finding that an “evaluation committee” of government employees created under the authority of a state agency administrator is not a public body); 1994 Ohio Op. Att’y Gen. No. 096 (opining that when a committee of private citizens and various public officers or employees is established solely pursuant to the executive authority of the administrator of a general health district for the purpose of providing advice pertaining to the administration of a grant, and establishment of the committee is not required or authorized by the grant or board action, such a committee is not a public body for purposes of R.C. 121.22(B)(1) and is not subject to the requirements of the open meetings law). 738 Wheeling Corp. v. Columbus & Ohio River R.R. Co. (10th Dist.), 147 Ohio App.3d 460, 2001-Ohio-8741, at ¶62 (noting that the Chairman of the Rail Commission appointed members to the Selection Committee). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual Page 79

The Ohio Open Meetings Act Chapter One: “Public Body” and “Meeting” Defined 4. When the Open Meetings Act Applies to Private Bodies Some otherwise private bodies are considered “public bodies” for purposes of the Open Meetings Act when they are organized pursuant to state statute and are statutorily authorized to receive and expend government funds for a governmental purpose. 739 For example, an Equal Opportunity Planning Association was found to be a public body within the meaning of the Act based on: (1) its designation by the Ohio Department of Development as a community action organization pursuant to statute; 740 (2) its responsibility for spending substantial sums of public funds in the operation of programs for the state welfare; and (3) its obligation to comply with state statutory provisions in order to keep its status as a community action organization. 741

B. Entities to Which the Open Meetings Act Does Not Apply 1. Public Bodies that are NEVER Subject to the Ohio Open Meetings Act:

742



The Ohio General Assembly 743



Grand juries 744



An audit conference conducted by the State Auditor or independent certified public accountants with officials of the public office that is the subject of the audit 745



The Organized Crime Investigations Commission 746



Child fatality review boards 747

2. Public Bodies that are SOMETIMES Subject to the Open Meetings Act: a. Public Bodies Meeting for Particular Purposes Some otherwise public bodies are not subject to the Ohio Open Meetings Act when they meet for particular purposes. Those are:

739



The Adult Parole Authority, when its hearings are conducted at a correctional institution for the sole purpose of interviewing inmates to determine pardon or parole; 748



The State Medical Board, 749 the State Board of Nursing, 750 the State Board of Pharmacy, 751 and the State Chiropractic Board, 752 when determining whether to suspend a certificate without a prior hearing; 753 and

State ex rel. Toledo Blade Co. v. Econ. Opportunity Planning Ass’n (C.P Lucas 1990), 61 Ohio Misc.2d 631; see also Stegall v. Joint Twp. Dist. Mem’l Hosp. (3d Dist. 1985), 20 Ohio App.3d 100. 740 R.C. 122.69. 741 State ex rel. Toledo Blade Co. v. Econ. Opportunity Planning Ass’n (C.P Lucas 1990), 61 Ohio Misc.2d 631, 640-41 (finding that the association is a public body subject to the Open Meetings Act, and noting that “[t]he language of the statute and its role in the organization of public affairs in Ohio make clear that this language is to be given a broad interpretation to ensure that the official business of the state is conducted openly” and that “[c]onsistent with that critical objective, a governmental decision-making body cannot assign its decisions to a nominally private body in order to shield those decisions from public scrutiny.”). 742 R.C. 121.22(D). 743 While the General Assembly as a whole is not governed by the Open Meetings Act, legislative committees are required to follow the guidelines set forth in the General Assembly’s own open meetings law (R.C. 101.15), which requires committee meetings to be open to the public and that minutes of those meetings be made available for public inspection. Like the Open Meetings Act, the legislature’s open meetings law includes some exceptions. For example, the law does not apply to meetings of the Joint Legislative Ethics Committee other than those meetings specified in the law (R.C. 101.15(F)(1)) or to meetings of a political party caucus (R.C. 101.15(F)(2)). 744 R.C. 121.22(D)(1). 745 R.C. 121.22(D)(2). 746 R.C. 121.22(D)(4). 747 R.C. 121.22(D)(5). 748 R.C. 121.22(D)(3). 749 R.C. 4730.25(G); R.C. 4731.22(G). 750 R.C. 4723.281(B). 751 R.C. 4729.16(D). 752 R.C. 4734.37. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual Page 80

The Ohio Open Meetings Act Chapter One: “Public Body” and “Meeting” Defined 

Emergency Response Commission’s executive committee, when meeting to determine whether to issue an enforcement order or to decide whether to litigate. 754

b. Public Bodies Handling Particular Business Other public bodies otherwise subject to the Ohio Open Meetings Act may close their meetings by unanimous vote of the members present in order to handle particular business. 755 Those public bodies are: 

The Controlling Board;



Development Financing Advisory Council;



Industrial Technology and Enterprise Advisory Council;



Tax Credit Authority;



Community improvement corporations; 756 and



Minority Development Financing Advisory Board. 757

These public bodies may vote to close their meetings in order to protect the interest of applicants or the possible investment of public funds 758 when considering “whether to grant assistance for purposes of community or economic development,” in order to evaluate: 

Marketing plans;



Specific business strategies;



Production techniques and trade secrets;



Financial projections; and



Personal financial statements, including tax records or other similar information not open to public inspection. 759

C. “Meeting” 1. Definition The Ohio Open Meetings Act applies to members of a public body when they are conducting the public’s business, which they must do in the context of an open meeting. 760 As stated previously, a “meeting” is: (1) a prearranged gathering; (2) a majority of members of a public body; (3) for the purpose of discussing public business. 761

a. Prearranged The Open Meetings Act addresses prearranged discussions, 762 but does not prohibit impromptu encounters between members of public bodies, such as hallway discussions. One court has found that an unsolicited and unexpected e-mail sent from one board member to other board

753

R.C. 121.22(D)(6)-(9). R.C. 121.22(D)(10). 755 R.C. 121.22(E). 756 R.C. 1724.11(B)(1) (community improvement corporation board or any committee or subcommittee when meeting to consider information that is not a public record may, by unanimous vote of all members present, close the meeting and discuss only that information). 757 R.C. 121.22(E). 758 R.C. 121.22(E). 759 R.C. 121.22(E)(1)-(5). 760 R.C. 121.22(A). 761 R.C. 121.22(B)(2). 762 State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540, 544, 1996-Ohio-372 (holding that the back-to-back, prearranged discussions of city council members constitutes a “majority,” but clarifying that the statute does not prohibit impromptu meetings between council members or prearranged member-to-member discussion, but concerns itself only with situations where a majority meets). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual Page 81 754

The Ohio Open Meetings Act Chapter One: “Public Body” and “Meeting” Defined members is clearly not a prearranged meeting; 763 nor is a spontaneous one-on-one telephone conversation between two board members. 764

b. Majority of Members For there to be a “meeting” as defined under the Open Meetings Act, “a majority of a public body’s members must come together.” 765 The term “majority” applies not only to the whole body, but also to a committee or subcommittee of that body. 766 For instance, if a council is comprised of seven members, four would constitute a majority for purposes of this requirement. However, if the council appoints a three-member finance committee, two of those members would constitute a majority of the finance committee. In other words, the finance committee is a “public body” in and of itself, and must also comply with the Ohio Open Meetings Act in all respects. 767

1) Attending in Person A member of a public body must be present in person at a meeting in order to be considered present, vote, or be counted as part of a quorum, 768 unless a specific law permits otherwise. The Ohio Board of Regents, for example, is specifically authorized by law to meet via videoconferencing. 769 In the absence of comparable statutory authority, other public bodies may not meet via electronic or telephonic conferencing. 770

2) “Round-robin” or “Serial” Meetings Some courts have concluded that one-on-one conversations between individual members of a public body, either in person or by telephone, do not violate the Ohio Open Meetings Act. 771 However, conducting back-to-back discussions of the same public business with less than a majority of members participating in each discussion is viewed as a single meeting attended by a majority of the members. Such “round-robin” or “serial” meetings violate the Ohio Open Meetings Act. 772

c. Discussing Public Business With narrow exceptions, the Ohio Open Meetings Act requires the members of a public body to discuss and deliberate on official business only in open meetings. 773 In this context, “discussion” is the exchange of words, comments or ideas by the members of a public body; 774 “deliberation” means the act of weighing and examining reasons for and against a choice. 775 One court describes “deliberation” as a thorough discussion of all factors involved a careful weighing of

763

Haverkos v. Nw. Local Sch. Dist. Bd. of Educ., 1st Dist. NOS. C-040578, C-040589, 2005-Ohio-3489, at ¶7. Haverkos v. Nw. Local Sch. Dist. Bd. of Educ., 1st Dist. NOS. C-040578, C-040589, 2005-Ohio-3489, at ¶7. Berner v. Woods, 2007 Ohio 6207, P17 (Ohio Ct. App., Lorain County Nov. 26, 2007); Tyler v. Vill. Of Batavia, 2010 Ohio 4078, P18 (Ohio Ct. App., Clermont County Aug. 30, 2010) (No “meeting” occurred when only two of five Commission members attended a previously scheduled session.) 766 State ex rel. Long v. Cardington Vill. Council, 92 Ohio St.3d 54, 2001-Ohio-130. 767 State ex rel. Long v. Cardington Vill. Council, 92 Ohio St.3d 54, 2001-Ohio-130. 768 R.C. 121.22(C); see generally 2009 Opp. Att’y Gen. 034. 769 E.g. R.C. 3333.02. 770 See Haverkos v. Nw. Local Sch. Dist. Bd. of Educ., 1st Dist. NOS. C-040578, C-040589, 2005-Ohio-3489, at ¶ 9 (noting that during a 2002 revision of the open meetings law, the legislature did not amend the statute to include “electronic communication” in the definition of a “meeting.” According to the court, this omission indicates the legislature’s intent not to include email exchanges as potential “meetings”). 771 Haverkos v. Nw. Local Sch. Dist. Bd. of Educ., 1st Dist. NOS. C-040578, C-040589, 2005-Ohio-3489, at ¶9 (finding that a spontaneous telephone call from one board member to another to discuss election politics did not violate the Open Meetings Act); Maser v. City of Canton (5th Dist. 1978), 62 Ohio App.2d 174, 178 (agreeing that a legislature did not intend to prohibit one committee member from calling another to discuss public business). However, see State ex rel. Consumer News Servs. V. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 66 (Ohio 2005), citing to Floyd v. Rock Hill Local School Bd of Edn. (Feb. 10, 1988), 4th Dist. No. 1862, unreported (“The sunshine law does not permit deliberations concerning the employment of a public employee to be conducted during one-on-one conversations. Such deliberations, if not held in public, must be held during an executive session at a regular or special meeting”). 772 See generally, State ex rel. Cincinnati Post v. City of Cincinnati, 76 Ohio St.3d 540, 542, 1996-Ohio-372 (determining that back-to-back meetings of members of a public body, in which less than a majority attend each meeting but the same item of public business is discussed, cannot be used to circumvent the clear intent of the law). 773 R.C. 121.22(A); R.C. 121.22(B)(2). 774 Devere v. Miami Univ. Bd. of Tr. (June 10, 1986), 12th Dist. No. CA85-05-065, unreported. 775 Springfield Local Sch. Dist. Bd. of Educ. v. Ohio Ass’n of Pub. Sch. Employees (9th Dist. 1998), 106 Ohio App.3d 855, 864. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual Page 82 764 765

The Ohio Open Meetings Act Chapter One: “Public Body” and “Meeting” Defined positive and negative factors, and a cautious consideration of the ramifications of the proposal, while gradually arriving at decision. 776 In evaluating whether particular gatherings of public officials constituted “meetings,” several courts have opined that the Ohio Open Meetings Act “is intended to apply to situations where there has been actual formal action taken; to wit, formal deliberation concerning the public business.” 777 By contrast, gatherings strictly of an investigative and information-seeking nature which do not involve actual deliberations of public business would not be “meetings” for purposes of the Ohio Open Meetings Act. 778

d. Gatherings Deemed Not to be Discussions or Deliberations Courts have evaluated whether particular gatherings or exchanges are “discussions” or “deliberations” that must take place in public, in accordance with the Ohio Open Meetings Act. The following have been found by some courts not to constitute “discussions” or “deliberations”: 

Question-and-answer sessions between board members and others who were not public officials, unless a majority of the board members also entertain a discussion of public business with one another; 779



Conversations between employees of a public body; 780



A presentation to a public body by its legal counsel when the public body receives legal advice; 781 or



A press conference. 782

2. Close-up: Applying the Definition of “Meeting” When a gathering satisfies all three elements of a meeting, it is a “meeting,” regardless of whether the public body initiated the gathering itself, or whether it was initiated by another entity. Further, if the meeting is attended by majorities of multiple public bodies, the gathering may be construed to be separate “meetings” of each public body. 783

a. Work Sessions “Work sessions” or “workshops” are “meetings” when public business is discussed among a majority of the members of a public body at a prearranged time. 784 These work sessions must be open to the public, properly noticed, and minutes must be maintained, just as with any other meeting. 785

776

Theile v. Harris (June 11, 1986), 1st Dist. No. C-860103, unreported. Holeski v. Lawrence (11th Dist. 1993), 85 Ohio App.3d 824. 778 Holeski v. Lawrence (11th Dist. 1993), 85 Ohio App.3d 824, 829 (finding that where the majority of members of a public body meet at a prearranged gathering in a “ministerial, fact-gathering capacity,” the third characteristic of a meeting is not satisfied – i.e., there are no discussions or deliberations occurring in which case, no open meeting is required; Theile v. Harris (June 11, 1986), 1st Dist. No. C-860103, unreported (finding that a prearranged discussion between prosecutor and majority of board was not violation where conducted for investigative and information-seeking purposes); Piekutowski v. S. Cent. Ohio Educ. Serv. Ctr. Governing Bd. (4th Dist.), 161 Ohio App.3d 372, 379, 2005-Ohio-2868, at ¶¶14-18 (finding that it is permissible for a board to gather information on proposed school district in private, but it cannot deliberate privately in the absence of specifically authorized purposes). 779 Holeski v. Lawrence (11th Dist. 1993), 85 Ohio App.3d 824, 830 (noting that “[t]he Sunshine Law is instead intended to prohibit the majority of a board from meeting and discussing public business with one another”). 780 Kandell v. City Council of Kent (Aug. 2, 1991), 11th Dist No. 90-P-2255, unreported; State ex rel. Bd. of Educ. for Fairview Park Sch. Dist. v. Bd. of Educ. for Rocky River Sch. Dist. (1988), 40 Ohio St.3d 136, 140 (determining that an employee’s discussions with a superintendent did not amount to secret deliberations within the meaning of R.C. 121.22(H)). 781 Theile v. Harris (June 11, 1986), 1st Dist. No. C-860103, unreported. 782 Holeski v. Lawrence (11th Dist. 1993), 85 Ohio App.3d 824. 783 State ex rel. Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97. 784 State ex rel. Singh v. Schoenfeld (May 4, 1993), 10th Dist. No. 92AP-188, 92AP-193, unreported. 785 State ex rel. Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual Page 83 777

The Ohio Open Meetings Act Chapter One: “Public Body” and “Meeting” Defined b. Quasi-judicial Hearings Public bodies whose responsibilities include adjudication duties, such as boards of tax appeals and state professional licensing boards, are referred to as “quasi-judicial” bodies. 786 The Ohio Supreme Court has determined that public bodies conducting quasi-judicial hearings, “like all judicial bodies, [require] privacy to deliberate, i.e., to evaluate and resolve the disputes.” 787 Accordingly, quasi-judicial hearings and the deliberations of public bodies when acting in their quasi-judicial capacities are not “meetings,” and are not subject to the Open Meetings Act. 788

c. County Political Party Central Committees The convening of a county political party central committee for the purpose of conducting purely internal party affairs, unrelated to the committee’s duties of making appointments to vacated public offices, is not a “meeting” as defined by R.C. 121.22(B)(2). Thus, R.C. 121.22 does not apply to such a gathering. 789

d. Collective Bargaining Collective bargaining meetings between public employers and employee organizations are private, and are not subject to the Ohio Open Meetings Act. 790

786

See TBC Westlake v. Hamilton County Bd. of Revision, 81 Ohio St.3d 58, 62, 1998-Ohio-445 (quoting Rossford Exempted Vill. Sch. Dist. v. State Bd. of Educ. (1989), 45 Ohio St.3d 356, 359 (stating that “the ‘most common test to determine whether the function under consideration involves the exercise of discretion and requires notice and hearing,’ all elements being required to constitute a quasi-judicial act.”) ). 787 TBC Westlake v. Hamilton County Bd. of Revision, 81 Ohio St.3d 58, 62, 1998-Ohio-445. 788 TBC Westlake v. Hamilton County Bd. of Revision, 81 Ohio St.3d 58, 62, 1998-Ohio-445 (“[T]he Sunshine Law does not apply to adjudications of disputes in qusi-judicial proceedings, such as the [Board of Tax Appeals]”); State ex rel. Ross v. Crawford County Bd. of Elections (2010) 125 Ohio St.3d 438, 445 (Because R.C. 121.22 did not apply to election board’s quasi-judicial challenge proceeding, boad did not violate Sunshine Law by failing to publicly vote to adjourn public hearing to deliberate or by failing to publicly vote on challenges after deliberation). See also Walker v. Muskingum Watershed Conservancy Dist. (5th Dist.), 2008-Ohio-4060; Angerman v. State Med. Bd. of Ohio (10th Dist. 1990), 70 Ohio App.3d 346, 352. 789 1980 Ohio Op. Att’y Gen. No. 083. 790 R.C. 4117.21; see also Springfield Local Sch. Dist. Bd. of Educ. v. Ohio Ass’n of Pub. Sch. Employees, (9th Dist. 1995), 106 Ohio App.3d 855, 869 (R.C. 4117.21 manifests a legislative interest in protecting the privacy of the collective bargaining process); Back v. Madison Local Sch. Dist. Bd. of Educ. (12th Dist.), 2007-Ohio-4218, at ¶¶6-10 (School board’s consideration of a proposed collective bargaining agreement with the school district’s teachers was properly held in a closed session because the meeting was not an executive session but was a “collective bargaining meeting,” which, under R.C. 4117.21, was exempt from the open meeting requirements of R.C. 121.22). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual Page 84

The Ohio Open Meetings Act Chapter Two: Duties of a Public Body II. Chapter Two: Duties of a Public Body The Ohio Open Meetings Act requires public bodies to provide: (A) openness; (B) notice; and (C) minutes.

A. Openness The Open Meetings Act mandates that all meetings of a public body be open at all times. 791 The Act is liberally construed requiring that public officials take official action and “conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.” 792

1. Where Meetings May be Held A public body must conduct its meetings in a venue that is open to the public. 793 Although the Ohio Open Meetings Act does not specifically address where meetings must be held, some authority suggests that meetings must be held in a public meeting place 794 that is within the geographical jurisdiction of the public body. 795 Clearly, a meeting is not “open” where the doors to the meeting facility are locked. 796 Where space in the facility is too limited to accommodate all interested members of the public, closed circuit television may be an acceptable alternative. 797 Although federal law requires that a meeting place be accessible to individuals with disabilities, this requirement has no Ohio Open Meetings Act ramifications. 798

2. Method of Voting Unless a particular statute requires a specified method of voting, the public cannot insist on a particular form of voting. The body may use its own discretion in determining the method it will use, such as voice vote, show of hands, or roll call. 799 The Open Meetings Act only defines a method of voting and requires a vote by roll call when a public body is adjourning into executive session. 800 The Act does not specifically address the use of secret ballots; however, their use has only been addressed as it pertains to county political party central committees, 801 which are uniquely hybrid private/public bodies. The Ohio Open Meetings Act declares that it shall be liberally construed to require public officials to take official action and conduct all deliberations only in open meetings unless the subject matter is officially excepted by law. Voting by secret ballot contradicts the openness requirement by hiding the decision-making process from public view.

791

R.C. 121.22(C). R.C. 121.22(A). 793 R.C. 121.22(C). 794 Crist v. True (12th Dist. 1972), 39 Ohio App.2d 11; 1992 Ohio Op. Att’y Gen. No. 032. 795 1944 Ohio Op. Att’y Gen. No. 7038; 1992 Ohio Op. Att’y Gen. No. 032. 796 Specht v. Finnegan (6th Dist.), 149 Ohio App.3d 201, 2002 Ohio 4660. 797 Wyse v. Rupp (Sept. 15, 1995), 6th Dist. No. F-94-19, unreported (finding that the Ohio Turnpike Commission dealt with the large crowd in a reasonable and impartial manner). 798 42 U.S.C. § 12101 (American with Disabilities Act of 1990, P.L. §§ 201-02). 799 But see State ex rel. Roberts v. Snyder (1948), 149 Ohio St. 333, 335 (finding that council was without authority to adopt a conflicting rule where enabling law limited council president’s vote to solely in the event of a tie). 800 R.C. 121.22(G). 801 1980 Ohio Op. Att’y Gen. No. 083. 792

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The Ohio Open Meetings Act Chapter Two: Duties of a Public Body 3. Right to be Heard Openness requires that a person be permitted to attend and observe a public meeting; however, it does not bestow the right to be heard at that meeting. 802 A disruptive person waives the right to attend and may be removed. 803

4. Audio and Video Recording Audio and video recording of a public meeting cannot be prohibited, 804 but public bodies are permitted to establish reasonable rules regulating the use of recording equipment, such as requiring equipment to be silent, unobtrusive, self-contained, and self-powered to limit interference with the ability of others to hear, see, and participate in the meeting. 805

5. Executive Sessions Executive sessions, which are discussed in detail below, are an exception to the openness requirement; however, public bodies may not vote or take official action in an executive session. 806

B. Notice Every public body must establish, by rule, a reasonable method for notifying the public in advance of its meetings. 807 The requirements for proper notice vary depending upon the type of meeting a public body is conducting.

1. Types of Meetings a. Regular Meetings “Regular meetings” are those held at prescheduled intervals, 808 such as monthly or annual meetings. A public body must establish, by rule, a reasonable method that allows the public to determine the time and place of regular meetings. 809

802

Wyse v. Rupp (Sept. 15, 1995), 6th Dist, No. F-94-19, unreported; Cmty. Concerned Citizens v. Union Twp. Bd. of Zoning Appeals (Dec. 2, 1991), 12th App. No. CA91-01-009, unreported, aff’d, (1993) 66 Ohio St.3d 452; Black v. Mecca Twp. Bd. of Tr. (11th Dist. 1993), 91 Ohio App.3d 351, 356 (finding that R.C. 121.22 does not require that a public body provide the public with an opportunity to comment at its meetings, but if public participation is permitted, it is subject to the protections of the First and Fourteenth Amendments); Forman v. Blaser (Aug. 8, 1988), 3rd Dist. No. 13-87-12, unreported (determining that R.C. 121.22 guarantees the right to observe a meeting, but not necessarily the right to be heard); 1992 Ohio Op. Att’y Gen. No. 032); see also 2007 Ohio Op. Att’y Gen. No. 019. 803 Forman v. Blaser (Aug. 8, 1988), 3rd Dist. No. 13-87-12, unreported (stating that “[w]hen an audience becomes so uncontrollable that the public body cannot deliberate, it would seem that the audience waives its right to, or is estopped from claiming a right under the Sunshine Law to continue to observe the proceedings.”); see also Jones v. Heyman (11th Cir. 1989), 888 F.2d 1328, 1333 (finding no violation of 1st and 14th Amendments where disruptive person was removed from a public meeting). 804 McVey v. Carthage Twp. Trustees (4th Dist.), 2005-Ohio-2869, at ¶¶14-15 (determining that trustees violated R.C. 121.22 by banning videotaping). 805 Kline v. Davis, 4th Dist. No. 04CA44, 2001-Ohio-2625 (blanket prohibition on recording a public meeting not justified); 1988 Ohio Op. Att’y Gen. No. 087 (opining that trustees have authority to adopt reasonable rules for use of recording equipment at their meetings). 806 R.C. 121.22(A); Mansfield City Counsel v. Richland City Council AFL-CIO (Dec. 24, 2003), 5th Dist. No. 03CA55, unreported (finding that that reaching a consensus to take no action on a pending matter, as reflected by members’ comments, is impermissible during an executive session). 807 R.C. 121.22(F). 808 State ex rel. Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97; 1988 Ohio Op. Att’y Gen. No. 029. 809 R.C. 121.22(F). See also Wyse v. Rupp (Sept. 15, 1995), 6th Dist. No. F-94-19, unreported (finding that a public body must specifically identify the time at which a public meeting will commence). Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Open Meetings Act Chapter Two: Duties of a Public Body b. Special Meetings A “special meeting” is any meeting other than a regular meeting. 810 A public body must establish, by rule, a reasonable method that allows the public to determine the time, place, and purpose of special meetings. 811 

Public bodies must provide at least 24 hours advance notification of special meetings to all media outlets that have requested such notification. 812



When a special meeting is held to discuss particular issues, the statement of the meeting’s purpose must specifically indicate those issues, and only those issues may be discussed at that meeting. 813 When a special meeting is simply a rescheduled “regular” meeting occurring at a different time, the stated purpose may be noticed to the public as “general purposes.” 814 Discussing matters not disclosed in the purpose statement of a special meeting, either in open session or executive session of the special meeting is a violation of the Open Meetings Act. 815

c. Emergency Meetings An emergency meeting is a special meeting that is convened when a situation requires immediate official action. 816 When an emergency meeting is scheduled, the public body must immediately notify all media outlets that have specifically requested such notice of the time, place and purpose of the emergency meeting. 817 The purpose statement must comport with the specificity requirements discussed above.

2. Rules Requirement The Ohio Open Meetings Act specifically requires public bodies to adopt rules establishing methods for notification. 818 Those rules must include a provision for any person, upon request and payment of a reasonable fee, to obtain reasonable advance notification of all meetings at which any specific type of public business is to be discussed. The statute suggests that provisions for advance notification may include mailing the agenda of meetings to all subscribers on a mailing list or mailing notices in self-addressed, stamped envelopes provided by the person requesting notice. 819

810

State ex rel. Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97, 100 (stating that “[t]he council either meets in a regular session or it does not, and any session that is not regular is special.”); 1988 Ohio Op. Att’y Gen. No. 029 (opining that “[w]hile the term ‘special meeting’ is not defined in R.C. 121.22, its use in context indicates that reference to all meetings other than ‘regular’ meetings was intended.”). 811 R.C. 121.22(F). See also Doran v. Northmont Bd. of Educ. (2nd Dist.), 147 Ohio App.3d 268, 272-73, 2002-Ohio-386 (“Doran I”) (finding that a board violated R.C. 121.22(F) by failing to establish, by rule, method to provide reasonable notice to the public of time, place, and purpose of special meetings); Stiller v. Columbiana Exempt Vill. Sch. Dist. Bd. Of Educ., 74 Ohio St.3d 113, 119-120, 1995-Ohio-266 (policy adopted pursuant to R.C. 121.22(F) that required notice of “specific or general purposes” of special meeting was not violated when general notice was given that nonrenewal of contract would be discussed, even though ancillary matters were also discussed). 812 R.C. 121.22(F); 1988 Ohio Op. Att’y Gen. No. 029. 813 Jones v. Brookfield Twp. Tr. (June 30, 1995), 11th Dist. No. 92-T-4692, unreported. 814 Jones v. Brookfield Twp. Tr. (June 30, 1995), 11th Dist. No. 92-T-4692, unreported; see also Satterfield v. Adams County Ohio Valley Sch. Dist. (Nov. 6, 1996), 4th Dist. No. 95CA611, unreported ( finding that although specific agenda items may be listed, use of agenda term “personnel” is sufficient for notice of special meeting). 815 Hoops v. Jerusalem Twp. Bd. of Tr. (Apr. 10, 1998), 6th Dist. No. L-97-1240, unreported (determining that business transacted at special meetings exceeded scope of published purpose and thus violated R.C. 121.22(F)). 816 Compare Neuvirth v. Bds. of Tr. of Bainbridge Twp. (June 29, 1081), 11th Dist. No. 919, unreported (determining that the subject matter of “emergency meeting” was not an emergency just because the Trustees postponed discussion until the last minute). 817 R.C. 121.22(F). 818 R.C. 121.22(F). 819 These requirements notwithstanding, many courts have found that actions taken by a public body are not invalid simply because the body failed to adopt notice rules. These courts reason that the purpose of the law’s invalidation section (R.C. 121.22(H)) is to invalidate actions taken where insufficient notice of the meeting was provided. See Doran v. Northmont Bd. of Educ. (2nd Dist.), 147 Ohio App.3d 268, 271, 2002-Ohio-386 (“Doran I”); Hoops v. Jerusalem Twp. Bd. of Tr. (Apr. 10, 1998), 6th Dist. No. L-97-1240, unreported; Barber v. Twinsburg Twp. (9th Dist. 1992), 73 Ohio App.3d 587. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Open Meetings Act Chapter Two: Duties of a Public Body 3. Notice by Publication Many public bodies routinely notify their local media of all regular, special, and emergency meetings, whether by rule or simply by practice. If the media misprints the meeting information, the public body will not be held responsible for violating the notice requirement so long as it transmitted accurate information to the media as required by its rule. 820 Notice must be consistent and “actually reach the public” to satisfy the statute. 821

C. Minutes 1. Content of Minutes A public body must keep full and accurate minutes of its meetings. 822 Those minutes are not required to be a verbatim transcript of the proceedings, but must include enough facts and information to permit the public to understand and appreciate the rationale behind the public body’s decisions. 823 Because executive sessions are not open to the public, the meeting minutes need to reflect only the general subject matter of the executive session via the motion to convene the session for a permissible purpose or purposes. 824

2. Making Minutes Available A public body must promptly prepare, file, and make available its minutes for public inspection. 825 The final version of the official minutes approved by members of the public body is a public record. Note that a draft version of the meeting minutes that is being circulated for approval is also a public record. 826

3. Medium on Which Minutes are Kept The medium on which the official meeting minutes are kept is not addressed in either the Ohio Open Meetings Act or the Ohio Public Records Act, and may thus be determined by the public body itself. Some public bodies document that choice by adopting a formal rule or by passing a resolution or motion at a meeting that is reflected in the minutes. Many public bodies make a contemporaneous audio recording of the meeting to use as back-up in preparing written official minutes. The Ohio Attorney General has opined that such a recording constitutes a public record that must be made available for inspection upon request. 827

820

Black v. Mecca Twp. Bd. of Tr. (11th Dist. 1993), 91 Ohio App.3d 351. Doran v. Northmont Bd. Of Educ. (2nd Dist.), 147 Ohio App.3d 268, 272, 2002-Ohio-386 (“Doran I”) (concluding that where publication of the notice is at the newspaper’s discretion, such notice is not “reasonable notice” to the public). 822 White v. Clinton County Bd. of Cmm’r (1996), 76 Ohio St.3d 416, 420 (stating that “[k]eeping full minutes allows members of the public who are unable to attend the meetings in person to obtain complete and accurate information about the decision-making process of their government […] Accurate minutes can reflect the difficult decision-making process involved, and hopefully bring the public to a better understanding of why unpopular decisions are sometimes necessary”). 823 See generally State ex rel. Citizens for Open, Responsive & Accountable Gov’t v. Register (2007), 116 Ohio St.3d 88 (construing R.C. 121.22, 149.43, and 507.04 together, a township fiscal officer has a duty to maintain full and accurate minutes and records of the proceedings as well as the accounts and transactions of the board of township trustees); White v. Clinton County Bd. of Cmm’r (1996), 76 Ohio St.3d 416, 423 (determining that the minutes of board of county commissioners meetings are required to include more than a record of roll call votes); State ex rel. Long v. Cardington Village Council, 92 Ohio St.3d 54, 2001-Ohio-130. 824 R.C. 121.22(C). 825 R.C. 121.22(C); see also White v. Clinton County Bd. of Commr. (1996), 76 Ohio St.3d 416; State ex rel. Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97 (finding that because the members of a public body had met as a majority group, R.C. 121.22 applied, and minutes of the meeting were therefore necessary); State ex rel. Long v. Cardington Vill. Council, 92 Ohio St.3d 54, 57, 2001-Ohio-130 (finding that audiotapes that are later erased do not meet requirement to maintain). 826 State ex rel. Doe v. Register (12th Dist.), 2009-Ohio-2448, at ¶28. 827 2008 Ohio Op. Att’y Gen. No. 019 (opining that an audio tape recording of a meeting that is created for the purpose of taking notes to create an accurate record of the meeting is a public record for purposes of R.C. 149.43. The audio tape recording must be made available for public inspection and copying, and retained in accordance with the terms of the records retention schedule for such a record). 821

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The Ohio Open Meetings Act Chapter Two: Duties of a Public Body D. Modified Duties of Public Bodies Under Special Circumstances 1. Declared Emergency During a declared emergency, R.C. 5502.24(B) provides a limited exception to fulfilling the requirements of the open meetings law. If, due to a declared emergency, it becomes “imprudent, inexpedient, or impossible to conduct the affairs of local government” at the regular or usual place, the governing body may meet at an alternate site previously designated (by ordinance, resolution, or other manner) as the emergency location of government. 828 Further, the public body may exercise its powers and functions in the light of the exigencies of the emergency without regard to or complianse with time-consuming procedures and formalities of the Ohio Open Meetings Act. Even in an emergency, however, there is no exception to the “in person” meeting requirement of R.C. 121.22(C) and does not permit the public body to meet by teleconference. 829

2. Municipal Charters The Ohio Open Meetings Act applies to public bodies at both the state and local government level. However, because the Ohio Constitution permits “home rule” (self-government), municipalities may adopt a charter under which their local governments operate. 830 A charter municipality has the right to determine by charter the manner in which meetings will be held. 831 Charter provisions take precedence over the Ohio Open Meetings Act where the two conflict. 832 If a municipal charter includes specific guidelines regarding the conduct of meetings, the municipality must abide by those guidelines. 833 In addition, if a charter expressly requires that all meetings of the public bodies must be open, the municipality may not adopt ordinances that permit executive session. 834

828

R.C. 5502.24(B). 2009 Op. Att’y Gen. No. 034; R.C. 5502.24(B). 830 Ohio Const., Art. XVIII, §§ 3, 7; see also State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 1996-Ohio-236; State ex rel. Fenley v. Kyger (1995), 72 Ohio St.3d 164; State ex rel. Lightfield v. Vill. of Indian Hill (1994), 69 Ohio St. 3d 441; State ex rel. Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97; State ex rel. Craft v. Schisler (1988), 40 Ohio St.3d 149; Fox v. City of Lakewood (1988), 39 Ohio St.3d 19. 831 State ex rel. Plain Dealer Publ’g Co. v. Barnes (1988), 38 Ohio St.3d 165, 168 (finding it unnecessary to decide the applicability of the Ohio Open Meetings Act because the charter language expressly provided for open meetings and encompassed the meeting at issue); Hills & Dales, Inc. v. Wooster (9th Dist. 1982), 4 Ohio App.3d 240, 242-43 (find that a charter municipality, in the exercise of its sovereign powers of local self-government as established by the Ohio Constitution need not adhere to the strictures of R.C. 121.22, and noting that “[w]e find nothing in the Wooster Charter which mandates that all meetings of the city council and/or the city planning commission must be open to the public”). 832 State ex rel. Lightfield v. Indian Hill (1994), 69 Ohio St.3d 441, 442 (determining that “[i]n matters of local self-government, if a portion of a municipal charter expressly conflicts with parallel state law, the charter provisions will prevail”). 833 State ex rel. Bond v. Montgomery (1st Dist. 1989), 63 Ohio App.3d 728; Johnson v. Kindig (Aug. 15, 2001), 9th Dist. No. 00CA0095, unreported (finding that where charter explicitly states all council meetings shall be public and the council must also explicitly state exception for executive session). 834 State ex rel. Inskeep v. Staten, 74 Ohio St.3d 676, 1996-Ohio-236; State ex rel. Plain Dealer Publ’g Co. v. Barnes (1998), 38 Ohio St.3d 165; State ex rel. Gannett Satellite Info. Network v. Cincinnati City Council (1st Dist. 2001), 137 Ohio App.3d 589, 592 (determining that when a city charter mandates all meetings be open, rules of council cannot supersede this mandate). 829

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The Ohio Open Meetings Act Chapter Three: Executive Session III. Chapter Three: Executive Session A. General Principles An “executive session” is a conference between members of a public body from which the public is excluded. 835 The public body, however, may invite anyone it chooses to attend an executive session. 836 The Ohio Open Meetings Act strictly limits the use of executive sessions and places several limitations on their use, because they do not take place in public. First, there are limited reasons for which an executive session may be called. 837 Second, there is a specific procedure that must be followed when a public body adjourns into an executive session. 838 Finally, the public body may not take any formal action in an executive session; 839 any formal action taken in an executive session is invalid. 840 Only matters specifically identified in R.C. 121.22(G) may be discussed in executive session, and executive session may be held only at a regular and special meetings. 841 Other, intertwined issues may be discussed only if they have a direct bearing on the permitted matter(s). 842 If a public body is challenged in court for discussions or deliberations held in executive session, the burden of proof lies with the public body to establish that one of the statutory exceptions permitted the executive session. 843 The Ohio Open Meetings Act does not prohibit the public body or one of its members from disclosing the information discussed in executive session. 844 However, other provisions of law may prohibit such disclosure. 845 Note: The confidentiality afforded to executive session discussions does not affect the public records status of any documents that may be discussed. If a document is a “public record” and is not otherwise exempt under one of the exceptions to the Ohio Public Records Act, the record will still be subject to public disclosure notwithstanding the appropriateness of confidential discussions about it in executive session. For instance, if a public body properly discusses pending litigation in executive

835

Weisel v. Palmyra Twp. Bd. of Zoning Appeals (July 19, 1991), 11th Dist. No. 90-P-2193, unreported; Davidson v. Sheffield-Sheffield Lake Bd. of Educ (May 23, 1990)., 9th Dist.. No. 89-CA004624, unreported. Chudner v. Cleveland City Sch. Dist. (Aug. 10, 1995), 8th Dist.. No. 68572, unreported (finding that inviting select individuals to attend an executive session is not a violation as long as no formal action of the public body will occur); Weisel v. Palmyra Twp. Bd. of Zoning Appeals (July 19, 1991), 11th Dist.. No. 90-P-2193, unreported; Davidson v. Sheffield-Sheffield Lake Bd. of Educ (May 23, 1990)., 9th Dist. No. 89-CA004624, unreported. 837 R.C.121.22(G)(1)-(7), (J). 838 R.C. 121.22(G)(1),(7) (requiring roll call vote and specificity in motion); see also State ex rel. Long v. Cardington Vill. Council, 92 Ohio St.3d 54, 59, 2001-Ohio-130 (finding that respondents violated R.C. 121.22(G)(1) by using general terms like “personnel” and “personnel and finances” instead of one of more of statutory purposes for holding an executive session); The Wheeling Corp. v. Columbus & Ohio River R.R. (10th Dist.), 147 Ohio App.3d 460, 2001-Ohio-8751, at ¶66 (determining that a majority of quorum of public body must determine, by roll call vote, to hold executive session); Wright v. Mt. Vernon City Council (Oct. 23, 1997), 5th Dist. No. 97-CA-7, unreported (determining that a public body must strictly comply with both the substantive and procedural limitations of R.C. 121.22(G)); Jones v. Brookfield Twp. Tr. (June 30, 1995), 11th Dist. No. 92-T-4692, unreported (stating that “[p]olice personnel matters” does not constitute substantial compliance because it does not refer to any of the specific purposes listed in R.C. 149.43(G)(1)); Vermillion Teachers’ Ass’n. v. Vermillion Local Sch. Dist. Bd. of Educ. (6th Dist. 1994), 98 Ohio App.3d 524, 531-32 (determining that a board violated 121.22(G) when it went into executive session to discuss a stated permissible topic but proceeded to discuss another, non-permissible topic); 1988 Ohio Op. Att’y Gen. No. 029. 839 R.C. 121.22(H). 840 R.C. 121.22(H); Mathews v. E. Local Sch. Dist. (4th Dist.), 2001-Ohio-2372 (finding that a board was permitted to discuss employee grievance in executive session, but was required to take formal action by voting in an open meeting); State ex rel. Kinsley v. Berea Bd. of Educ. (8th Dist. 1990), 64 Ohio App. 3d 659, 664 (determining that once a conclusion is reached regarding pending or imminent litigation, the conclusion is to be made public, even though the deliberations leading to the conclusion were private). 841 R.C. 121.22(G). 842 Chudner v. Cleveland City Sch.Dist. (Aug. 10, 1995), 8th Dist.. No. 68572, unreported (determining that issues discussed in executive session each had a direct bearing on topic that was permissible subject of executive session discussion). 843 State ex rel. Bond v. City of Montgomery (1st Dist. 1989), 63 Ohio App.3d 728. 844 But compare R.C. 121.22(G)(2) (providing that “no member of a public body shall use [executive session under property exception] as a subterfuge for providing covert information to prospective buyers or sellers.”). 845 See e.g., R.C. 102.03(B) (providing that a public official must not disclose or use any information acquired in course of official duties that is confidential because of statutory provisions, or that has been clearly designated as confidential). 836

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The Ohio Open Meetings Act Chapter Three: Executive Session session, a settlement agreement negotiated during that executive session and reduced to writing may be subject to public disclosure. 846

B. Permissible Discussion Topics There are very limited topics that the members of a public body may consider in executive session:

1. Certain Personnel Matters

847

A public body may adjourn into executive session: 

To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official; and



To consider the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, 848 unless the employee, official, licensee, or regulated individual requests a public hearing; 849 but



A public body may not hold an executive session to consider the discipline of an elected official for conduct related to the performance of the official’s duties or to consider that person’s removal from office.

Appellate courts disagree on whether the discussion of personnel in an executive session must be limited to a specific individual, or may include broader discussion of employee matters. At least two appellate courts have held that the language of the Ohio Open Meetings Act clearly limits discussion in executive session to consideration of a specific employee’s employment, dismissal, etc. 850 These decisions are based on the premise that the plain language in the Act requires that “all meetings of any public body are declared to be open to the public at all times”; 851 thus, any exceptions to openness are to be drawn narrowly. A separate appellate court, however, looked to a different provision in the same statute that permits the public body to exclude the name of any person to be considered during the executive session as allowing general personnel discussions. 852

2. The Purchase of Property A public body may adjourn into executive session to consider the purchase of property of any sort-real, personal, tangible, or intangible. 853 A public body may also adjourn into executive session to consider the sale of real or personal property by competitive bid if disclosure of the information would 846

State ex rel. Findlay Publ’g Co. v. Hancock County Bd. of Cmm’r (1997), 80 Ohio St.3d 134, 138 (quoting State ex rel. Kinsley v. Berea Bd. of Educ. (1990), 64 Ohio App.3d 659, 664 (stating that “[s]ince a settlement agreement contains the result of the bargaining process rather than revealing the details of the negotiations which led to the result, R.C. 121.22(G)(3), which exempts from public view only the conferences themselves, would not exempt a settlement agreement from disclosure.”)). 847 R.C. 121.22(G)(1). 848 R.C. 121.22(B)(3) (defining “regulated individual” as (a) a student in a state or local public educational institution or (b) a person who is, voluntarily or involuntarily, an inmate, patient, or resident of a state or local institution because of criminal behavior, mental illness or retardation, disease, disability, age, or other condition requiring custodial care). 849 See Brownfield v. Bd. of Educ. (Aug. 28, 1990), 4th Dist. No. 89 CA 26, unreported (providing that upon request, a teacher was entitled to have deliberations regarding his dismissal in open meetings). NOTE: This exception does not grant a substantive right to a public hearing. Such a right must exist elsewhere in Ohio or federal law before a person may demand a public hearing under this exception. See Davidson v. Sheffield-Sheffield Lake Bd. of Educ (May 23, 1990)., 9th Dist. No. 89-CA004624, unreported (citing Matheny v. Bd. of Educ. (1980)., 62 Ohio St.2d 362, 368 (providing that “the term ‘public hearing’ in subdivision (G)(1) of this statute refers only to the hearings elsewhere provided by law”)); State ex rel. Harris v. Indus. Comm’n of Ohio (Dec. 14, 1995), 10th Dist. No. 95APE07-891, unreported. 850 Gannett Satellite Info. Network v. Chillicothe City Sch. Dist. (4th Dist. 1988), 41 Ohio App.3d 218; Davidson v. Sheffield-Sheffield Lake Bd. of Educ (May 23, 1990)., 9th Dist. No. 89-CA004624, unreported (rejecting the argument that an executive session was illegally held for a dual, unauthorized purpose when it was held to discuss termination of a specific employee’s employment due to budgetary considerations). 851 RC 121.22(C). 852 Wright v. Mt. Vernon City Council (Oct. 23, 1997), 5th Dist. No. 97-CA-7, unreported (finding that it was permissible for public body to discuss merit raises for exempt city employees in executive session without referring to individuals in particular positions). 853 R.C. 121.22(G)(2); see also 1988 Ohio Op. Att’y Gen. No. 003. Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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The Ohio Open Meetings Act Chapter Three: Executive Session result in a competitive advantage to the person whose personal, private interest is adverse to the general public interest. 854 No member of a public body may use this exception as subterfuge to provide covert information to prospective buyers or sellers. 855

3. Pending or Imminent Litigation A public body may adjourn into executive session with the public body’s attorney to discuss a pending or imminent court action. 856 Court action is “pending” if a lawsuit has been commenced or is “imminent” if it is on the point of happening. 857 A public body may not use this exception to adjourn into executive session for discussions with a board member who also happens to be an attorney. The attorney should be the duly appointed counsel for the public body. 858

4. Collective Bargaining Matters A public body may adjourn into executive session to prepare for, conduct, or review a collective bargaining strategy. 859

5. Matters Required to be Kept Confidential A public body may adjourn into executive session to discuss matters required to be kept confidential by federal law, federal rules, or state statutes. 860

6. Security Matters A public body may adjourn into executive session to discuss details of security arrangements and emergency response protocols where disclosure could be expected to jeopardize the security of the public body or public office. 861

7. Hospital Trade Secrets A public body may adjourn into executive session to discuss trade secrets of a county hospital, a joint township hospital, or a municipal hospital. 862

8. Veterans Service Commission Applications A Veterans Service Commission must hold an executive session when considering an applicant’s request for financial assistance, unless the applicant requests a public hearing. 863 Note that, unlike the previous seven discussion topics, discussion of Veterans Service Commission applications in executive session is mandatory. 854

R.C. 121.22(G)(2); see also 1988 Ohio Op. Att’y Gen. No. 003. R.C. 121.22(G)(2). 856 R.C. 121.22(G)(3). 857 State ex rel. Cincinnati Enquirer v. Hamilton County Comm’r (1st Dist.), 2002-Ohio-2038 (determining that “imminent” is satisfied when a public body has moved beyond mere investigation and assumed an aggressive litigative posture manifested by the decision to commit government resources to the prospective litigation); State ex rel. Bond v. City of Montgomery (1st Dist. 1989), 63 Ohio App.3d 728; but see Greene County Guidance Ctr., Inc. v. Greene-Clinton Cmty. Mental Health Bd. (2nd Dist. 1984), 19 Ohio App.3d 1, 5 (determining that a discussion with legal counsel in executive session under 121.22(G)(3) is permitted where litigation is a “reasonable prospect”). 858 Awadalla v. Robinson Mem’l Hosp. (June 5, 1992), 11th Dist. No. 91-P-2385, unreported (finding that a board’s “attorney” was identified as “senior vice president” in meeting minutes). 859 R.C. 121.22(G)(4); see also Back v. Madison Local Sch. Dist. Bd. of Educ. (12th Dist.), 2007-Ohio-4218, at ¶8 (determining that a school board’s meeting with a labor organization to renegotiate teachers salaries was proper because the meeting was not an executive session but was a “collective bargaining meeting,” which, under R.C. 4117.21, was exempt from the open meeting requirements of R.C. 121.22). 860 R.C. 121.22(G)(5); see also State ex rel. Cincinnati Enquirer v. Hamilton County Cmm’r (1st Dist.), 2002-Ohio-2038 (determining that R.C. 121.22(G)(5) is intended to allow a public body to convene an executive session to discuss matters that they are legally bound to keep from the public); J.C. Penney Prop., Inc. v. Bd. of Revision of Franklin County (Jan. 19, 1982), Ohio Bd. Tax Appeals Nos. 81-D-509, 81-D-510, unreported (determining that common law may not be available under R.C. 121.22 (G)(5) given the presence of R.C. 121.22(G)(3)); but see Theile v. Harris June 11, 1986), 1st App. No. C-860103, unreported (finding that public officials have right and duty to seek legal advice from their duly constituted legal advisor). 861 R.C. 121.22(G)(6). 862 R.C. 121.22(G)(7). 863 R.C. 121.22(J). 855

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The Ohio Open Meetings Act Chapter Three: Executive Session C. Proper Procedures for Executive Session An executive session may only be held at a regular or special meeting, and must always begin and end in an open meeting. 864 In order to begin an executive session, there must be both a proper motion, and a roll call vote. 865

1. The Motion A motion for executive session must specifically identify “which one or more of the approved matters listed . . . are to be considered at the executive session.” 866 Thus, if the purpose of the executive session is to discuss one of the matters included in the personnel exception, the motion must specify which of those specific matters will be discussed; e.g., “I move to go into executive session to consider the promotion or compensation of a public employee.” 867 It is not sufficient to simply state “personnel” as a reason for executive session, 868 though the motion does not need to specify by name the person who is to be discussed. 869 Similarly, listing every permitted executive session topic in the motion, regardless of whether that specific topic will actually be discussed, is equally vague and would likely be viewed by the courts as improper.

2. The Roll Call Vote Members of a public body may adjourn into executive session only after a majority of a quorum of the public body approves the motion by a roll call vote. 870 The vote may not be by acclamation or by show of hands, and the vote must be recorded in the minutes. 871 Although a proper motion is required before entering executive session, a motion to end the executive session and return to public session is not necessary because the closed-door discussion is “off the record.” Similarly, no minutes are taken during executive session. The minutes of the meeting need only document a motion to go into executive session that properly identifies the permissible topic or topics that will be discussed, as well as the return to open session (e.g., “We are now back on the record.”).

864

R.C. 121.22(G). Vermillion Teachers’ Ass’n v. Vermillion Local Sch. Dist. Bd. of Educ. (6th Dist. 1994), 98 Ohio App.3d 524; 1988 Ohio Op. Att’y Gen. No. 029 (detailing proper procedure for executive session). 866 R.C. 121.22(G)(1), (7). 867 Jones v. Brookfield Twp. Tr. (June 30, 1995), 11th Dist. No. 92-T-4692, unreported; 1988 Ohio Op. Att’y Gen. No. 029; State ex rel. Long v. Cardington Vill.Council, 92 Ohio St.3d 54, 2001-Ohio-130. 868 State ex rel. Long v. Cardington Vill. Council, 92 Ohio St.3d 54, 59, 2001-Ohio-130 (determining that by using general terms like “personnel” instead of one or more of the specified statutory purposes is a violation of R.C. 121.22(G)(1)); Jones v. Brookfield Twp. Tr. (June 30, 1995), 11th Dist. No. 92-T4692, unreported (determining that “a reference to ‘police personnel issues’ does not technically satisfy [the R.C. 121.22(G)(1)] requirement because it does not specify which of the approved purposes was applicable in this instance”); 1988 Ohio Op. Att’y Gen. No. 029. 869 R.C. 121.22(G)(1); Beisel v. Monroe County Bd. of Educ. (Aug. 29, 1990), 7th Dist. No. CA-678, unreported. 870 R.C. 121.22(G). 871 R.C. 121.22(G); 1988 Ohio Op. Att’y Gen. No. 029; see Shaffer v. Vill. of W. Farmington (11th Dist. 1992), 82 Ohio App.3d 579, 584 (finding that minutes may not be conclusive evidence as to whether roll call vote was taken). 865

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The Ohio Open Meetings Act Chapter Four: Enforcement & Remedies IV. Chapter Four: Enforcement & Remedies In Ohio, no state or local government official has the authority to enforce the Ohio Open Meetings Act. Rather, if any person believes a public body has violated or intends to violate the Ohio Open Meetings Act, that person may file suit in common pleas court to enforce the law’s provisions. 872 Courts reviewing alleged violations will strictly construe the Ohio Open Meetings Act in favor of openness. 873 In practice, this has included the courts looking beyond the express reason stated by a public body for an executive session to find an implied or circumstantial violation of the Act. 874

A. Enforcement 1. Injunction The type of court action that must be filed for an alleged violation of the Ohio Open Meetings Act is called an injunction. 875 This action must be “brought within two years after the date of the alleged violation or threatened violation." 876 If granted by a court, an injunction compels the members of the public body to comply with the law by either refraining from the prohibited behavior or by conducting their meetings in accordance with law where they previously failed to do so.

a. Who May File “Any person” may have standing to file for an injunction to enforce the Ohio Open Meetings Act. 877 The person need not demonstrate a personal stake in the outcome of the lawsuit. 878

b. Where to File Unlike the Ohio Public Records Act, which permits an aggrieved person to initiate a legal action directly with a common pleas court, a district court of appeals, or the Ohio Supreme Court, the Ohio Open Meetings Act requires that an action for injunction be filed only in the court of common pleas in the county where the alleged Act violation took place. 879

872

R.C. 121.22(I)(1). Gannett Satellite Info. Network v. Chillicothe City Sch. Dist. (4th Dist. 1988), 41 Ohio App.3d 218. 874 Sea Lakes, Inc. v. Lipstreu (Sept. 30, 1991), 11th Dist. No. 90-P-2254, unreported (finding a violation where board was to discuss administrative appeal merits privately, appellant’s attorney objected, board immediately held executive session “to discuss pending litigation,” then emerged to announce decision on appeal); In the Matter of Removal of Smith (May 15, 1991), 5th Dist. No. CA-90-11, unreported (finding a violation where county commission emerged from executive session held “to discuss legal matters” and announced decision to remove Smith from Board of Mental Health, where there was no county attorney present in executive session and a request for public hearing on removal decision was pending). 875 R.C. 121.22(I)(1). See Fahl v. Athens, 4th Dist. No. 06CA23, 2007-Ohio-4925 & Stainfield v. Jefferson Emergency Rescue Dist., 11th Dist. No. 2009-A-0044, 2010-Ohio-2282, at ¶40 (appellate courts declined to consider arguments alleging Open Meetings Act violations as part of administrative appeals because appellants failed to bring original actions and request appropriate relief in courts of common pleas.). 876 R.C. 121.22(I)(1); see also Mollette v. Portsmouth City Council (4th Dist.), 179 Ohio App.3d 455, 2008-Ohio-6342. 877 R.C. 121.22(I)(1); McVey v. Carthage Twp. Tr. (4th Dist.), 2005-Ohio-2869. 878 Doran v. Northmont Bd. Of Educ. (2nd Dist.), 153 Ohio App.3d 499, 2003-Ohio-4084, at ¶20 (“Doran II”); State ex rel. Mason v. State Employment Relations Bd. (Apr. 20, 1999), 10th Dist. No. 98AP-780, unreported; Thompson v. Joint Twp. (June 23, 1983), 3rd Dist. No. 2-82-8, unreported; Foreman v. Blaser (Aug. 8, 1988), 3rd Dist. No. 13-87-12, unreported; but see Korchnak v. Civil Serv. Comm’n of Canton (Jan. 7, 1991), 5th Dist. No. CA-8133, unreported (determining that a party had no standing to challenge notice of a violation without a formal request and payment of a fee established by a public body). 879 R.C. 121.22(I)(1). 873

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The Ohio Open Meetings Act Chapter Four: Enforcement & Remedies c. Finding a Violation Upon proof of a violation or threatened violation of the Ohio Open Meetings Act, the court will conclusively and irrebuttably presume harm and prejudice to the person who brought the suit 880 and will issue an injunction. 881 Once an injunction is issued, members of the public body who later commit a “knowing” violation of the injunction may be removed from office through a court action that may only be brought by the county prosecutor or the Ohio Attorney General. 882

d. Curing a Violation Once a violation is proven, the court must grant the injunction, regardless of the public body’s intervening or subsequent attempts to cure the violation. 883 Indeed, Ohio courts have differing views as to whether an invalid action can ever be cured by new, compliant discussions followed by official action taken in an open session. 884 However, if the action at issue is removal of a public official that was decided during a meeting allegedly not open to the public, the proper vehicle to challenge that action is a quo warranto action. 885

2. Mandamus Where a person seeks access to the public body’s minutes, that person may also file a mandamus action under the Ohio Public Records Act to compel the creation of or access to meeting minutes. 886 Mandamus is also an appropriate action to order a public body to give notice of meetings to the person filing the action. 887

880

R.C. 121.22(I)(3); Ream v. Civil Serv. Comm’n of Canton (Nov. 26, 1990), 5th Dist. No. CA-8033, unreported. R.C. 121.22(I)(1);see also Doran v. Northmont Bd. Of Educ. (2nd Dist.), 153 Ohio App.3d 499, 2003-Ohio-4084, at ¶21 (“Doran II”) (determining that an injunction is mandatory upon finding violation of statute); Fayette Volunteer Fire Dept. No. 2, Inc. v. Fayette Twp. Bd. Of Tr. (4th Dist. 1993), 87 Ohio App. 3d 51, 54. 882 R.C. 121.22(I)(4); McClarren v. City of Alliance (Oct. 13, 1987), 5th Dist. No. CA-7201, unreported. 883 McVey v. Carthage Twp. Tr. (4th Dist.), 2005-Ohio-2869, at ¶9 (stating that “[b]ecause the statute clearly provides that an injunction is to be issued upon finding a violation of the Sunshine Law, it is irrelevant that the Trustees nullified their prior [offending] action.”); Doran v. Northmont Bd. of Educ (2nd Dist.)., 153 Ohio App.3d 499, 2003-Ohio-4084 (“Doran II”); Beisel v. Monroe County Bd. of Educ. (Aug. 29, 1990), 7th Dist. No. CA-678, unreported. 884 Courts finding that violations cannot be cured: Danis Montco Landfill Co. v. Jefferson Twp. Zoning Comm’n (2nd Dist. 1993), 85 Ohio App.3d 494; M.F. Mon. Waste Ventures, Inc. v. Bd. of Amanda Twp. Tr. (Feb. 12, 1988), 3rd Dist. No. 1-87-46, unreported; Gannett Satellite Info. Network, Inc. v. Chillicothe City Sch. Dist. Bd. Of Educ. (4th Dist. 1988), 41 Ohio App.3d 218, 221 (finding that “[a] violation of the Sunshine Law cannot be “cured” by subsequent open meetings if the public body initially discussed matters in executive session that should have been discussed before the public). Courts finding violations can be cured: State ex rel. Cincinnati Enquirer v. Hamilton County Cmm’r (1st Dist.), 2002-Ohio-2038; Theile v. Harris (June 11, 1986), 1st Dist. No. C-860103, unreported; Kuhlman v. Vill. of Leipsic (Mar. 27, 1995), 3rd Dist. No. 12-94-9, unreported; Carpenter v. Bd. of Cmm’r (Aug. 10, 1982), 3rd Dist. No. 1-81-44, unreported; Fox v. City of Lakewood (1988), 39 Ohio St.3d 19; Beisel v. Monroe County Bd. of Educ. (Aug. 29, 1990), 7th Dist. No. CA-678, unreported (finding that in contrast to Gannett Satellite Info. Network, Inc. v. Chillicothe City Sch. Dist. Bd. Of Educ. (4th Dist. 1988), 41 Ohio App.3d 218, aviolation can be “cured” by subsequent open meetings because matter could have been discussed in executive session had motion sufficiently reflected matter to be discussed); Brownfield v. Bd. of Educ. (Aug. 28, 1990), 4th Dist. No. 89-CA-26, unreported. 885 State ex rel. Newell v. City of Jackson (2008), 118 Ohio St.3d 138, 2008-Ohio-1965, at ¶¶8-14 (finding that to be entitled to a writ of quo warranto to oust a good-faith appointee, a relator must take affirmative action by either filing a quo warranto action or an injunction challenging the appointment before the appointee completes the probationary period and becomes a permanent employee; further, this duty applies to alleged violations of the open meeting provisions of R.C. 121.22); Randles v. Hill, 66 Ohio St.3d 32, 1993-Ohio-204. 886 State ex rel. Long v. Cardington Vill. Council, 92 Ohio St.3d 54, 2001-Ohio-130; State ex rel. Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97. 887 State ex rel. Vindicator Printing Co. v. Kirila (Dec. 31, 1991), 11th Dist. No. 91-T-4550, unreported (overruled on other grounds). 881

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The Ohio Open Meetings Act Chapter Four: Enforcement & Remedies B. Remedies 1. Invalidity A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. 888 However, courts have refused to allow public bodies to benefit from their own violations of the Ohio Open Meetings Act. 889 For instance, a public body may not attempt to avoid a contractual obligation by arguing that approval of the contract is invalid due to a violation of the Act. 890

a. Formal Action A “formal action” occurs via any mechanism by which members make their views known about a matter pending before them. 891 Even in the absence of a formal vote or poll, a formal action may have occurred. For instance, while council members properly deliberated in executive session about whether to take action on a union request, they improperly took formal action during the executive session when they decided not to take action on the request and to announce as much via a press release. Those decisions were deemed invalid and of no effect. 892 In addition, even if the formal action is taken in an open meeting, it is still invalid if it results from deliberations that improperly occurred outside of an open meeting, e.g., at an informal, private meeting or in an executive session that was held for other than an authorized purpose. 893

b. Improper Notice A formal action taken in a meeting for which notice was not properly given is invalid. 894

c. Minutes At least one court has found that minutes are merely the record of actions; they are not actions in and of themselves, and minutes that were not properly approved do not invalidate the actions recorded in the minutes. 895

2. Mandatory Civil Forfeiture If the court issues an injunction, the court will order the public body to pay a civil forfeiture of $500 to the person who filed the action. 896 Further, where a public body is found to have violated the law on repeated occasions, courts have awarded a $500 civil forfeiture for each violation. 897

888

R.C. 121.22(H); State ex rel. Holliday v. Marion Twp. Bd. of Tr. (3rd Dist.), 2000-Ohio-1877. Jones v. Brookfield Twp. Tr. (June 30, 1995), 11th Dist. No. 92-T-4692, unreported; Roberto v. Brown County Gen. Hosp. (Feb. 8, 1988), 12th Dist. No. CA87-06-009, unreported. 890 Roberto v. Brown County Gen. Hosp. (Feb. 8, 1988), 12th Dist. No. CA87-06-009, unreported. 891 Mansfield City Council v. Richland County Council AFL-CIO (Dec. 24, 2003), 5th Dist. No. 03 CA 55, unreported; see also Piekutowski v. S.Cent. Ohio Educ. Serv. Ctr. Governing Bd. (4th Dist.), 161 Ohio App.3d 372, 2005-Ohio-2868, at ¶19 (noting that in an executive session, board members gave personal opinions and indicated how they would vote on a proposal to create new school district; resolution to adopt proposal deemed invalid, though it was also later adopted in open session). 892 Mansfield City Council v. Richland County Council AFL-CIO (Dec. 24, 2003), 5th Dist. No. 03 CA 55, unreported. 893 R.C. 121.22(H); Mansfield City Council v. Richland County Council AFL-CIO (Dec. 24, 2003), 5th Dist. No. 03 CA 55, unreported (determining that council reached its conclusion based on comments in executive session and acted according to that conclusion); State ex rel. Holliday v. Marion Twp. Bd. of Tr. (3rd Dist.), 2000-Ohio-1877; see also State ex rel. Delph v. Barr (1989), 44 Ohio St.3d 77. 894 R.C. 121.22(H); see also State ex rel. Stiller v. Columbiana Exempted Vill. Sch. Dist. Bd. of Educ. (1995), 74 Ohio St.3d 113, 118; but see Hoops v. Jerusalem Twp. Bd. of Tr. (Apr. 10, 1998), 6th Dist. No. L-97-1240, unreported (illustrating that actions are not invalid merely because a reasonable method of notice had not been enacted by “rule”); Barber v. Twinsburg Twp. (9th Dist. 1992), 73 Ohio App.3d 587. 895 Davidson v. Hanging Rock (4th Dist. 1994), 97 Ohio App.3d 723, 733. 896 R.C. 121.22(I)(2)(a); State ex rel. Long v. Cardington Vill. Council, 92 Ohio St.3d 54, 2001-Ohio-130; Cincinnati Enquirer v. City of Cincinnati (1st Dist. 2001), 145 Ohio App.3d 335. 897 Specht v. Finnegan (6th Dist.), 2002-Ohio-4660; Manogg v. Stickle (Mar. 15, 1999), 5th Dist. No. 98CA00102, unreported, distinguished by Doran v. Northmont Bd. of Educ. (2nd Dist.), 2003-Ohio-7097, at ¶18 (“Doran III”) (determining that the failure to adopt rule is one violation with one $500 fine— fine not assessed for each meeting conducted in absence of rule where meetings were, in fact, properly noticed and held in an open forum)); Weisbarth v. Geauga (11th Dist.), 2007-Ohio-6728, at ¶30 (finding that the only violation alleged was Board’s failure to state a precise statutory reason for going into executive session; this “technical violation entitled appellant to only one statutory injunction and one civil forfeiture.”). 889

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The Ohio Open Meetings Act Chapter Four: Enforcement & Remedies 3. Court Costs and Attorney Fees If the court issues an injunction, it will order the public body to pay all court costs 898 and the reasonable attorney’s fees of the person who filed the action. 899 Courts have discretion to reduce or completely eliminate attorney’s fees, however, if they find that: (1) based on the state of the law when the violation occurred, a well-informed public body could have reasonably believed it was not violating the law; and (2) it was reasonable for the public body to believe its actions served public policy. 900 If the court does not issue an injunction and deems the lawsuit to have been frivolous, the court will order the person who filed the suit to pay all of the public body’s court costs and reasonable attorney’s fees as determined by the court. 901

898

R.C. 121.22(I)(2)(a). R.C. 121.22(I)(2)(a); State ex rel. Long v. Cardington Vill. Council, 92 Ohio St.3d 54, 60, 2001-Ohio-130 (awarding a citizen over $17,000 in attorney’s fees); Cincinnati Enquirer v. City of Cincinnati (1st Dist. 2001), 145 Ohio App.3d 335. 900 R.C. 121.22(I)(2)(a)(i), (ii); Mansfield City Council v. Richland County Council AFL-CIO (Dec. 24, 2003), 5th Dist. No. 03 CA 55, unreported; but see Mathews v. E. Local Sch. Dist., 4th Dist. No. 00CA647, 2001-Ohio-2372 (determining that where two board members knew not to take formal action during executive session, the board was not entitled to reduction). 901 R.C. 121.22(I)(2)(b); McIntyre v. Westerville City Sch. Dist. Bd of Educ. (June 6, 1991), 10th Dist. Nos. 90AP-1024, 90AP-1063, unreported (determining that a plaintiff engaged in frivolous conduct because her actions subjected the board to a baseless suit and the incurring of needless expense). 899

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Appendix A - Statutes Statutes: Public Records, Open Meetings, & Personal Information Systems Acts1 Records Statutes § 9.01 – Methods for making records, copies, and reproductions..................................................... [A2] § 109.43 – Training for elected officials or appropriate designees regarding public records............ [A3-4] § 121.211 – Retention periods for records........................................................................................ [A4] § 149.011 – Definitions ...................................................................................................................... [A4-5] § 149.31 – Archives administration....................................................................................................[A5] § 149.33 – State records program..................................................................................................... [A5-6] § 149.331 – Functions of state records program............................................................................... [A6] § 149.332 – Records management programs in the legislative and judicial branches...................... [A7] § 149.333 – Applications for records disposal or transfer; schedules of retention & destruction ...... [A7] § 149.34 – Records management procedures for all state agencies ................................................ [A7-8] § 149.35 – Laws prohibiting the destruction of records..................................................................... [A8] § 149.351 – Prohibition against destruction or damage of records ................................................... [A8] § 149.352 – Replevin of public records unlawfully removed.............................................................. [A9] § 149.36 – Authority not restricted ..................................................................................................... [A9] § 149.38 – County records commission............................................................................................. [A9-10] § 149.39 – Municipal records commission......................................................................................... [A10] § 149.40 – Only necessary records to be made ................................................................................ [A10] § 149.41 – School district and educational service center records commissions.............................. [A11] § 149.411 – Library records commission in each public library ......................................................... [A11-12] § 149.412 – Special taxing district records commission .................................................................... [A12] § 149.42 – Township records commission......................................................................................... [A13] § 149.43 – Availability of public records............................................................................................. [A13-22] § 149.431 – Records of governmental or nonprofit organizations ..................................................... [A22-23] § 149.432 – Releasing library record or patron information............................................................... [A23-24] § 149.433 – Exemption of security and infrastructure records .......................................................... [A24-25] § 149.434 – Public office to maintain employee database ................................................................ [A25] § 149.44 – Availability of records in centers and archival institutions................................................ [A26] § 149.45 – Redacting, encrypting, or truncating personal information .............................................. [A26-28] Meetings Statutes § 121.22 – Meetings of public bodies to be public; exceptions.......................................................... [A28-32] Personal Information Statutes § 1347.01 – Personal Information Systems Act: Definitions.............................................................. [A33] § 1347.04 – Exemptions .................................................................................................................... [A34] § 1347.05 – Duties of state and local agencies maintaining personal information systems ............. [A34-35] § 1347.06 – Administrative rules........................................................................................................ [A35] § 1347.07 – Use of personal information ........................................................................................... [A35] § 1347.071 – Interconnected or combined systems .......................................................................... [A36] § 1347.08 – Rights of subject of personal information....................................................................... [A36-37] § 1347.09 – Disputed information; duties of agency.......................................................................... [A38] § 1347.10 – Liability for wrongful disclosure; limitation of action ....................................................... [A38-39] § 1347.12 – Disclosure or notification by state or local agency of breach......................................... [A39-42] § 1347.15 – Rules regulating access to confidential personal information .......................................[A43-45] § 1347.99 – Penalty ........................................................................................................................... [A45] 1

Editor’s Note: These sections of the Ohio Revised Code are current as of January 1, 2011.

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Appendix A - Statutes Ohio Revised Code § 9.01 – Methods for making records, copies, and reproductions When any officer, office, court, commission, board, institution, department, agent, or employee of the state, of a county, or of any other political subdivision who is charged with the duty or authorized or required by law to record, preserve, keep, maintain, or file any record, document, plat, court file, paper, or instrument in writing, or to make or furnish copies of any of them, deems it necessary or advisable, when recording or making a copy or reproduction of any of them or of any such record, for the purpose of recording or copying, preserving, and protecting them, reducing space required for storage, or any similar purpose, to do so by means of any photostatic, photographic, miniature photographic, film, microfilm, or microphotographic process, or perforated tape, magnetic tape, other magnetic means, electronic data processing, machine readable means, or graphic or video display, or any combination of those processes, means, or displays, which correctly and accurately copies, records, or reproduces, or provides a medium of copying, recording, or reproducing, the original record, document, plat, court file, paper, or instrument in writing, such use of any of those processes, means, or displays for any such purpose is hereby authorized. Any such records, copies, or reproductions may be made in duplicate, and the duplicates shall be stored in different buildings. The film or paper used for a process shall comply with the minimum standards of quality approved for permanent photographic records by the national bureau of standards. All such records, copies, or reproductions shall carry a certificate of authenticity and completeness, on a form specified by the director of administrative services through the state records program. Any such officer, office, court, commission, board, institution, department, agent, or employee of the state, of a county, or of any other political subdivision may purchase or rent required equipment for any such photographic process and may enter into contracts with private concerns or other governmental agencies for the development of film and the making of reproductions of film as a part of any such photographic process. When so recorded, or copied or reproduced to reduce space required for storage or filing of such records, such photographs, microphotographs, microfilms, perforated tape, magnetic tape, other magnetic means, electronic data processing, machine readable means, graphic or video display, or combination of these processes, means, or displays, or films, or prints made therefrom, when properly identified by the officer by whom or under whose supervision they were made, or who has their custody, have the same effect at law as the original record or of a record made by any other legally authorized means, and may be offered in like manner and shall be received in evidence in any court where the original record, or record made by other legally authorized means, could have been so introduced and received. Certified or authenticated copies or prints of such photographs, microphotographs, films, microfilms, perforated tape, magnetic tape, other magnetic means, electronic data processing, machine readable means, graphic or video display, or combination of these processes, means, or displays, shall be admitted in evidence equally with the original. Such photographs, microphotographs, microfilms, or films shall be placed and kept in conveniently accessible, fireproof, and insulated files, cabinets, or containers, and provisions shall be made for preserving, safekeeping, using, examining, exhibiting, projecting, and enlarging them whenever requested, during office hours. All persons utilizing the methods described in this section for keeping records and information shall keep and make readily available to the public the machines and equipment necessary to reproduce the records and information in a readable form. Most Recent Effective Date: 09-26-2003

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Appendix A - Statutes Ohio Revised Code § 109.43 – Training for elected officials or appropriate designees regarding public records law and sunshine laws (A) As used in this section: (1) "Designee" means a designee of the elected official in the public office if that elected official is the only elected official in the public office involved or a designee of all of the elected officials in the public office if the public office involved includes more than one elected official. (2) "Elected official" means an official elected to a local or statewide office. "Elected official" does not include the chief justice or a justice of the supreme court, a judge of a court of appeals, court of common pleas, municipal court, or county court, or a clerk of any of those courts. (3) "Public office" has the same meaning as in section 149.011 [149.01.1] of the Revised Code. (4) "Public record" has the same meaning as in section 149.43 of the Revised Code. (B) The attorney general shall develop, provide, and certify training programs and seminars for all elected officials or their appropriate designees in order to enhance the officials' knowledge of the duty to provide access to public records as required by section 149.43 of the Revised Code. The training shall be three hours for every term of office for which the elected official was appointed or elected to the public office involved. The training shall provide elected officials or their appropriate designees with guidance in developing and updating their offices' policies as required under section 149.43 of the Revised Code. The successful completion by an elected official or by an elected official's appropriate designee of the training requirements established by the attorney general under this section shall satisfy the education requirements imposed on elected officials or their appropriate designees under division (E) of section 149.43 of the Revised Code. Prior to providing the training programs and seminars under this section to satisfy the education requirements imposed on elected officials or their appropriate designees under division (E) of section 149.43 of the Revised Code, the attorney general shall ensure that the training programs and seminars are accredited by the commission on continuing legal education established by the supreme court. (C) The attorney general shall not charge any elected official or the appropriate designee of any elected official any fee for attending the training programs and seminars that the attorney general conducts under this section. The attorney general may allow the attendance of any other interested persons at any of the training programs or seminars that the attorney general conducts under this section and shall not charge the person any fee for attending the training program or seminar. (D) In addition to developing, providing, and certifying training programs and seminars as required under division (B) of this section, the attorney general may contract with one or more other state agencies, political subdivisions, or other public or private entities to conduct the training programs and seminars for elected officials or their appropriate designees under this section. The contract may provide for the attendance of any other interested persons at any of the training programs or seminars conducted by the contracting state agency, political subdivision, or other public or private entity. The contracting state agency, political subdivision, or other public or private entity may charge an elected official, an elected official's appropriate designee, or an interested person a registration fee for attending the training program or seminar conducted by that contracting agency, political subdivision, or entity pursuant to a contract entered into under this division. The attorney general shall determine a reasonable amount for the registration fee based on the actual and necessary expenses associated with the training programs and seminars. If the contracting state agency, political subdivision, or other public or private entity charges an elected official or an elected official's appropriate designee a registration fee for attending the training program or seminar conducted pursuant to a contract entered into under this division by that contracting agency, political subdivision, or entity, the public

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Appendix A - Statutes office for which the elected official was appointed or elected to represent may use the public office's own funds to pay for the cost of the registration fee. (E) The attorney general shall develop and provide to all public offices a model public records policy for responding to public records requests in compliance with section 149.43 of the Revised Code in order to provide guidance to public offices in developing their own public record policies for responding to public records requests in compliance with that section. (F) The attorney general may provide any other appropriate training or educational programs about Ohio's "Sunshine Laws," sections 121.22 and 149.43 of the Revised Code, as may be developed and offered by the attorney general or by the attorney general in collaboration with one or more other state agencies, political subdivisions, or other public or private entities. (G) The auditor of state, in the course of an annual or biennial audit of a public office pursuant to Chapter 117. of the Revised Code, shall audit the public office for compliance with this section and division (E) of section 149.43 of the Revised Code. Most Recent Effective Date: 09-29-2007

Ohio Revised Code § 121.211 – Retention periods for records Records in the custody of each agency shall be retained for time periods in accordance with law establishing specific retention periods, and in accordance with retention periods or disposition instructions established by the state records administration. Most Recent Effective Date: 07-01-1985

Ohio Revised Code § 149.011 – Definitions As used in this chapter, except as otherwise provided: (A) "Public office" includes any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government. (B) "State agency" includes every department, bureau, board, commission, office, or other organized body established by the constitution and laws of this state for the exercise of any function of state government, including any state-supported institution of higher education, the general assembly, any legislative agency, any court or judicial agency, or any political subdivision or agency of a political subdivision. (C) "Public money" includes all money received or collected by or due a public official, whether in accordance with or under authority of any law, ordinance, resolution, or order, under color of office, or otherwise. It also includes any money collected by any individual on behalf of a public office or as a purported representative or agent of the public office. (D) "Public official" includes all officers, employees, or duly authorized representatives or agents of a public office. (E) "Color of office" includes any act purported or alleged to be done under any law, ordinance, resolution, order, or other pretension to official right, power, or authority.

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Appendix A - Statutes (F) "Archive" includes any public record that is transferred to the state archives or other designated archival institutions because of the historical information contained on it. (G) "Records" includes any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office. Most Recent Effective Date: 09-29-2007

Ohio Revised Code § 149.31 – Archives administration (A) The Ohio historical society, in addition to its other functions, shall function as the state archives administration for the state and its political subdivisions. It shall be the function of the state archives administration to preserve government archives, documents, and records of historical value that may come into its possession from public or private sources. The archives administration shall evaluate, preserve, arrange, service repair, or make other disposition of, including transfer to public libraries, county historical societies, state universities, or other public or quasipublic institutions, agencies, or corporations, those public records of the state and its political subdivisions that may come into its possession under this section. Those public records shall be transferred by written agreement only, and only to public or quasi-public institutions, agencies, or corporations capable of meeting accepted archival standards for housing and use. The archives administration shall be headed by a trained archivist designated by the Ohio historical society and shall make its services available to county, municipal, township, school district, library, and special taxing district records commissions upon request. The archivist shall be designated as the "state archivist." (B) The archives administration may purchase or procure for itself, or authorize the board of trustees of an archival institution to purchase or procure, from an insurance company licensed to do business in this state policies of insurance insuring the administration or the members of the board and their officers, employees, and agents against liability on account of damage or injury to persons and property resulting from any act or omission of the board members, officers, employees, and agents in their official capacity. (C) Notwithstanding any other provision of the Revised Code to the contrary, the archives administration may establish a fee schedule, which may include the cost of labor, for researching, retrieving, copying, and mailing copies of public records Most Recent Effective Date: 09-29-2007

Ohio Revised Code § 149.33 – State records program (A) The department of administrative services shall have responsibility for establishing and administering a state records program for all state agencies, except for state-supported institutions of higher education. The department shall apply efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposition of state records.

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Appendix A - Statutes There is hereby established within the department of administrative services a state records program, which shall be under the control and supervision of the director of administrative services or the director's appointed deputy. (B) The boards of trustees of state-supported institutions of higher education shall have full responsibility for establishing and administering a records program for their respective institutions. The boards shall apply efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposition of the records of their respective institutions. Most Recent Effective Date: 09-26-2003

Ohio Revised Code § 149.331 – Functions of state records program The state records program of the department of administrative services shall do all of the following: (A) Establish and promulgate in consultation with the state archivist standards, procedures, and techniques for the effective management of state records; (B) Review applications for one-time records disposal and schedules of records retention and destruction submitted by state agencies in accordance with section 149.333 [149.33.3] of the Revised Code; (C) Establish "general schedules" proposing the disposal, after the lapse of specified periods of time, of records of specified form or character common to several or all agencies that either have accumulated or may accumulate in such agencies and that apparently will not, after the lapse of the periods specified, have sufficient administrative, legal, fiscal, or other value to warrant their further preservation by the state; (D) Establish and maintain a records management training program, and provide a basic consulting service, for personnel involved in record-making and record-keeping functions of departments, offices, and institutions; (E) Provide for the disposition of any remaining records of any state agency, board, or commission, whether in the executive, judicial, or legislative branch of government, that has terminated its operations. After the closing of the Ohio veterans' children's home, the resident records of the home and the resident records of the home when it was known as the soldiers' and sailors' orphans' home required to be maintained by approved records retention schedules shall be administered by the state department of education pursuant to this chapter, the administrative records of the home required to be maintained by approved records retention schedules shall be administered by the department of administrative services pursuant to this chapter, and historical records of the home shall be transferred to an appropriate archival institution in this state prescribed by the state records program. (F) Establish a centralized program coordinating micrographics standards, training, and services for the benefit of all state agencies; (G) Establish and publish in accordance with the applicable law necessary procedures and rules for the retention and disposal of state records. This section does not apply to the records of state-supported institutions of higher education, which shall keep their own records. Most Recent Effective Date: 09-26-2003

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Appendix A - Statutes Ohio Revised Code § 149.332 – Records management programs in the legislative and judicial branches Upon request the director of administrative services and the state archivist shall assist and advise in the establishment of records management programs in the legislative and judicial branches of state government and shall, as required by them, provide program services similar to those available to the executive branch under section 149.33 of the Revised Code. Prior to the disposal of any records, the state archivist shall be allowed sixty days to select for preservation in the state archives those records the state archivist determines to have continuing historical value. Most Recent Effective Date: 09-26-2003

Ohio Revised Code § 149.333 – Applications for records disposal or transfer; schedules of retention and destruction No state agency shall retain, destroy, or otherwise transfer its state records in violation of this section. This section does not apply to state-supported institutions of higher education. Each state agency shall submit to the state records program under the director of administrative services all applications for records disposal or transfer and all schedules of records retention and destruction. The state records program shall review the applications and schedules and provide written approval, rejection, or modification of an application or schedule. The state records program shall then forward the application for records disposal or transfer or the schedule for retention or destruction, with the program's recommendation attached, to the auditor of state for review and approval. The decision of the auditor of state to approve, reject, or modify the application or schedule shall be based upon the continuing administrative and fiscal value of the state records to the state or to its citizens. If the auditor of state disapproves the action by the state agency, the auditor of state shall so inform the state agency through the state records program within sixty days, and the records shall not be destroyed. At the same time, the state records program shall forward the application for records disposal or transfer or the schedule for retention or destruction to the state archivist for review and approval. The state archivist shall have sixty days to select for custody the state records that the state archivist determines to be of continuing historical value. Records not selected shall be disposed of in accordance with this section. Most Recent Effective Date: 09-26-2003

Ohio Revised Code § 149.34 – Records management procedures for all state agencies The head of each state agency, office, institution, board, or commission shall do the following: (A) Establish, maintain, and direct an active continuing program for the effective management of the records of the state agency; (B) Submit to the state records program, in accordance with applicable standards and procedures, schedules proposing the length of time each record series warrants retention for administrative, legal, or fiscal purposes after it has been received or created by the agency. The head also shall submit to the state records program applications for disposal of records in the head's custody that are not needed in the

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Appendix A - Statutes transaction of current business and are not otherwise scheduled for retention or destruction. (C) Within one year after their date of creation or receipt, schedule all records for disposition or retention in the manner prescribed by applicable law and procedures. This section does not apply to state-supported institutions of higher education. Most Recent Effective Date: 09-26-2003

Ohio Revised Code § 149.35 – Laws prohibiting the destruction of records If any law prohibits the destruction of records, the director of administrative services, the director's designee, or the boards of trustees of state-supported institutions of higher education shall not order their destruction or other disposition. If any law provides that records shall be kept for a specified period of time, the director of administrative services, the director's designee, or the boards shall not order their destruction or other disposition prior to the expiration of that period. Most Recent Effective Date: 09-26-2003

Ohio Revised Code § 149.351 – Prohibition against destruction or damage of records (A) All records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code or under the records programs established by the boards of trustees of state-supported institutions of higher education under section 149.33 of the Revised Code. Such records shall be delivered by outgoing officials and employees to their successors and shall not be otherwise removed, transferred, or destroyed unlawfully. (B) Any person who is aggrieved by the removal, destruction, mutilation, or transfer of, or by other damage to or disposition of a record in violation of division (A) of this section, or by threat of such removal, destruction, mutilation, transfer, or other damage to or disposition of such a record, may commence either or both of the following in the court of common pleas of the county in which division (A) of this section allegedly was violated or is threatened to be violated: (1) A civil action for injunctive relief to compel compliance with division (A) of this section, and to obtain an award of the reasonable attorney's fees incurred by the person in the civil action; (2) A civil action to recover a forfeiture in the amount of one thousand dollars for each violation, and to obtain an award of the reasonable attorney's fees incurred by the person in the civil action. Most Recent Effective Date: 07-01-1992

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Appendix A - Statutes Ohio Revised Code § 149.352 – Replevin of public records unlawfully removed Upon request of the department of administrative services, the attorney general may replevin any public records which have been unlawfully transferred or removed in violation of sections 149.31 to 149.44 of the Revised Code or otherwise transferred or removed unlawfully. Such records shall be returned to the office of origin and safeguards shall be established to prevent further recurrence of unlawful transfer or removal. Most Recent Effective Date: 07-01-1985

Ohio Revised Code § 149.36 – Authority not restricted The provisions of sections 149.31 to 149.42, inclusive, of the Revised Code shall not impair or restrict the authority given by other statutes over the creation of records, systems, forms, procedures, or the control over purchases of equipment by public offices. Most Recent Effective Date: 10-19-1959

Ohio Revised Code § 149.38 – County records commission (A) There is hereby created in each county a county records commission, composed of a member of the board of county commissioners as chairperson, the prosecuting attorney, the auditor, the recorder, and the clerk of the court of common pleas. The commission shall appoint a secretary, who may or may not be a member of the commission and who shall serve at the pleasure of the commission. The commission may employ an archivist or records manager to serve under its direction. The commission shall meet at least once every six months and upon call of the chairperson. (B) The functions of the county records commission shall be to provide rules for retention and disposal of records of the county and to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by county offices. The commission may dispose of records pursuant to the procedure outlined in this section. The commission, at any time, may review any schedule it has previously approved and, for good cause shown, may revise that schedule, subject to division (D) of this section. (C) When the county records commission has approved any county application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor's approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those records that it considers to be of continuing historical value. Upon the expiration of the fifteen-business-day period, the county records commission also shall notify the public libraries, county historical society, state universities, and other public or quasi-public institutions, agencies, or corporations in the county that have provided the commission with their name and address for these notification purposes, that the commission has informed the Ohio historical society of the records disposal and that the notified entities, upon written agreement with the Ohio historical society

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Appendix A - Statutes pursuant to section 149.31 of the Revised Code, may select records of continuing historical value, including records that may be distributed to any of the notified entities under section 149.31 of the Revised Code. (D) The rules of the county records commission shall include a rule that requires any receipts, checks, vouchers, or other similar records pertaining to expenditures from the delinquent tax and assessment collection fund created in section 321.261 [321.26.1] of the Revised Code, from the real estate assessment fund created in section 325.31 of the Revised Code, or from amounts allocated for the furtherance of justice to the county sheriff under section 325.071 [325.07.1] of the Revised Code or to the prosecuting attorney under section 325.12 of the Revised Code to be retained for at least four years. (E) No person shall knowingly violate the rule adopted under division (D) of this section. Whoever violates that rule is guilty of a misdemeanor of the first degree. Most Recent Effective Date: 09-29-2007

Ohio Revised Code § 149.39 – Municipal records commission There is hereby created in each municipal corporation a records commission composed of the chief executive or the chief executive's appointed representative, as chairperson, and the chief fiscal officer, the chief legal officer, and a citizen appointed by the chief executive. The commission shall appoint a secretary, who may or may not be a member of the commission and who shall serve at the pleasure of the commission. The commission may employ an archivist or records manager to serve under its direction. The commission shall meet at least once every six months and upon call of the chairperson. The functions of the commission shall be to provide rules for retention and disposal of records of the municipal corporation and to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by municipal offices. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule. When the municipal records commission has approved any application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor's approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value. Most Recent Effective Date: 09-29-2007

Ohio Revised Code § 149.40 – Only necessary records to be made The head of each public office shall cause to be made only such records as are necessary for the adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and for the protection of the legal and financial rights of the state and persons directly affected by the agency's activities. Most Recent Effective Date: 07-01-1985

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Appendix A - Statutes Ohio Revised Code § 149.41 – School district and educational service center records commissions There is hereby created in each city, local, joint vocational, and exempted village school district a school district records commission and in each educational service center an educational service center records commission. Each records commission shall be composed of the president, the treasurer of the board of education or governing board of the educational service center, and the superintendent of schools in each such district or educational service center. The commission shall meet at least once every twelve months. The function of the commission shall be to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by any employee of the school district or educational service center. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule. When the school district records commission or the educational service center records commission has approved any application for one-time disposal of obsolete records or any schedule of records retention and disposition, the appropriate commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor's approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the appropriate commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value. The society may not review or select for its custody either of the following: (A) Records containing personally identifiable information concerning any pupil attending a public school other than directory information, as defined in section 3319.321 [3319.32.1] of the Revised Code, without the written consent of the parent, guardian, or custodian of each such pupil who is less than eighteen years of age, or without the written consent of each such pupil who is eighteen years of age or older; (B) Records the release of which would, according to the "Family Educational Rights and Privacy Act of 1974," 88 Stat. 571, 20 U.S.C.A. 1232g, disqualify a school or other educational institution from receiving federal funds. Most Recent Effective Date: 09-29-2007

Ohio Revised Code § 149.411 – Library records commission in each public library There is hereby created in each county free public library, municipal free public library, township free public library, school district free public library as described in section 3375.15 of the Revised Code, county library district, and regional library district a library records commission composed of the members and the fiscal officer of the board of library trustees of the appropriate public library or library district. The commission shall meet at least once every twelve months. The functions of the commission shall be to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by any employee of the library. The commission may

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Appendix A - Statutes dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule. When the appropriate library records commission has approved any library application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor's approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value. The Ohio historical society may not review or select for its custody any records pursuant to section 149.432 [149.43.2] of the Revised Code. Most Recent Effective Date: 06-20-2008

Ohio Revised Code § 149.412 – Special taxing district records commission There is hereby created in each special taxing district that is a public office as defined in section 149.011 [149.01.1] of the Revised Code and that is not specifically designated in section 149.38, 149.39, 149.41, 149.411 [149.01.1], or 149.42 of the Revised Code a special taxing district records commission composed of, at a minimum, the chairperson, a fiscal representative, and a legal representative of the governing board of the special taxing district. The commission shall meet at least once every twelve months and upon the call of the chairperson. The functions of the commission shall be to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by any employee of the special taxing district. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule. When the special taxing district records commission has approved any special taxing district application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor's approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value. Most Recent Effective Date: 09-29-2007

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Appendix A - Statutes Ohio Revised Code § 149.42 – Township records commission There is hereby created in each township a township records commission, composed of the chairperson of the board of township trustees and the fiscal officer of the township. The commission shall meet at least once every twelve months and upon call of the chairperson. The function of the commission shall be to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by township offices. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule. When the township records commission has approved any township application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor's approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a period of fifteen business days to select for its custody those public records that it considers to be of continuing historical value. Most Recent Effective Date: 09-29-2007

Ohio Revised Code § 149.43 – Availability of public records (A) As used in this section: (1) "Public record" means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in this state kept by the nonprofit or for profit entity operating the alternative school pursuant to section 3313.533 [3313.53.3] of the Revised Code. "Public record" does not mean any of the following: (a) Medical records; (b) Records pertaining to probation and parole proceedings or to proceedings related to the imposition of community control sanctions and post-release control sanctions; (c) Records pertaining to actions under section 2151.85 and division (C) of section 2919.121 [2919.12.1] of the Revised Code and to appeals of actions arising under those sections; (d) Records pertaining to adoption proceedings, including the contents of an adoption file maintained by the department of health under section 3705.12 of the Revised Code; (e) Information in a record contained in the putative father registry established by section 3107.062 [3107.06.2] of the Revised Code, regardless of whether the information is held by the department of job and family services or, pursuant to section 3111.69 of the Revised Code, the office of child support in the department or a child support enforcement agency;

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Appendix A - Statutes (f) Records listed in division (A) of section 3107.42 of the Revised Code or specified in division (A) of section 3107.52 of the Revised Code; (g) Trial preparation records; (h) Confidential law enforcement investigatory records; (i) Records containing information that is confidential under section 2710.03 or 4112.05 of the Revised Code; (j) DNA records stored in the DNA database pursuant to section 109.573 [109.57.3] of the Revised Code; (k) Inmate records released by the department of rehabilitation and correction to the department of youth services or a court of record pursuant to division (E) of section 5120.21 of the Revised Code; (l) Records maintained by the department of youth services pertaining to children in its custody released by the department of youth services to the department of rehabilitation and correction pursuant to section 5139.05 of the Revised Code; (m) Intellectual property records; (n) Donor profile records; (o) Records maintained by the department of job and family services pursuant to section 3121.894 [3121.89.4] of the Revised Code; (p) Peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation residential and familial information; (q) In the case of a county hospital operated pursuant to Chapter 339. of the Revised Code or a municipal hospital operated pursuant to Chapter 749. of the Revised Code, information that constitutes a trade secret, as defined in section 1333.61 of the Revised Code; (r) Information pertaining to the recreational activities of a person under the age of eighteen; (s) Records provided to, statements made by review board members during meetings of, and all work products of a child fatality review board acting under sections 307.621 [307.62.1] to 307.629 [307.62.9] of the Revised Code, and child fatality review data submitted by the child fatality review board to the department of health or a national child death review database, other than the report prepared pursuant to division (A) of section 307.626 [307.62.6] of the Revised Code; (t) Records provided to and statements made by the executive director of a public children services agency or a prosecuting attorney acting pursuant to section 5153.171 [5153.17.1] of the Revised Code other than the information released under that section; (u) Test materials, examinations, or evaluation tools used in an examination for licensure as a nursing home administrator that the board of examiners of nursing home administrators administers under section 4751.04 of the Revised Code or contracts under that section with a private or government entity to administer; (v) Records the release of which is prohibited by state or federal law;

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Appendix A - Statutes (w) Proprietary information of or relating to any person that is submitted to or compiled by the Ohio venture capital authority created under section 150.01 of the Revised Code; (x) Information reported and evaluations conducted pursuant to section 3701.072 [3701.07.2] of the Revised Code. (y) Financial statements and data any person submits for any purpose to the Ohio housing finance agency or the controlling board in connection with applying for, receiving, or accounting for financial assistance from the agency, and information that identifies any individual who benefits directly or indirectly from financial assistance from the agency; (z) Records listed in section 5101.29 of the Revised Code. (aa) Discharges recorded with a county recorder under section 317.24 of the Revised Code, as specified in division (B)(2) of that section. (2) "Confidential law enforcement investigatory record" means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following: (a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised; (b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source's or witness's identity; (c) Specific confidential investigatory techniques or procedures or specific investigatory work product; (d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source. (3) "Medical record" means any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment. (4) "Trial preparation record" means any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney. (5) "Intellectual property record" means a record, other than a financial or administrative record, that is produced or collected by or for faculty or staff of a state institution of higher learning in the conduct of or as a result of study or research on an educational, commercial, scientific, artistic, technical, or scholarly issue, regardless of whether the study or research was sponsored by the institution alone or in conjunction with a governmental body or private concern, and that has not been publicly released, published, or patented. (6) "Donor profile record" means all records about donors or potential donors to a public institution of higher education except the names and reported addresses of the actual donors and the date, amount, and conditions of the actual donation. (7) "Peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation residential and familial information" means any information that discloses any of the following about a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney,

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Appendix A - Statutes correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation: (a) The address of the actual personal residence of a peace officer, parole officer, assistant prosecuting attorney, 2 correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation, except for the state or political subdivision in which the peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation resides; (b) Information compiled from referral to or participation in an employee assistance program; (c) The social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of, or any medical information pertaining to, a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation; (d) The name of any beneficiary of employment benefits, including, but not limited to, life insurance benefits, provided to a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation by the peace officer's, parole officer's, prosecuting attorney's, assistant prosecuting attorney's, correctional employee's, youth services employee's, firefighter's, EMT's, or investigator of the bureau of criminal identification and investigation's employer; (e) The identity and amount of any charitable or employment benefit deduction made by the peace officer's, parole officer's, prosecuting attorney's, assistant prosecuting attorney's, correctional employee's, youth services employee's, firefighter's, EMT's, or investigator of the bureau of criminal identification and investigation's employer from the peace officer's, parole officer's, prosecuting attorney's, assistant prosecuting attorney's, correctional employee's, youth services employee's, firefighter's, EMT's, or investigator of the bureau of criminal identification and investigation's compensation unless the amount of the deduction is required by state or federal law; (f) The name, the residential address, the name of the employer, the address of the employer, the social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of the spouse, a former spouse, or any child of a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation; (g) A photograph of a peace officer who holds a position or has an assignment that may include undercover or plain clothes positions or assignments as determined by the peace officer's appointing authority. As used in divisions (A)(7) and (B)(9) of this section, "peace officer" has the same meaning as in section 109.71 of the Revised Code and also includes the superintendent and troopers of the state highway patrol; it does not include the sheriff of a county or a supervisory employee who, in the absence of the sheriff, is authorized to stand in for, exercise the authority of, and perform the duties of the sheriff. As used in divisions (A)(7) and (B)(5) of this section, "correctional employee" means any employee of the department of rehabilitation and correction who in the course of performing the employee's job duties has or has had contact with inmates and persons under supervision.

2

The address of the actual personal residence of elected prosecuting attorneys is not excepted from disclosure. Sub. H.B. No. 141 (126th GA). Please note that the online versions of Chapter 149 incorrectly include prosecuting attorneys in R.C. 149.43(A)(7)(a).

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Appendix A - Statutes As used in divisions (A)(7) and (B)(5) of this section, "youth services employee" means any employee of the department of youth services who in the course of performing the employee's job duties has or has had contact with children committed to the custody of the department of youth services. As used in divisions (A)(7) and (B)(9) of this section, "firefighter" means any regular, paid or volunteer, member of a lawfully constituted fire department of a municipal corporation, township, fire district, or village. As used in divisions (A)(7) and (B)(9) of this section, "EMT" means EMTs-basic, EMTs-I, and paramedics that provide emergency medical services for a public emergency medical service organization. "Emergency medical service organization," "EMT-basic," "EMT-I," and "paramedic" have the same meanings as in section 4765.01 of the Revised Code. As used in divisions (A)(7) and (B)(9) of this section, "investigator of the bureau of criminal identification and investigation" has the meaning defined in section 2903.11 of the Revised Code. (8) "Information pertaining to the recreational activities of a person under the age of eighteen" means information that is kept in the ordinary course of business by a public office, that pertains to the recreational activities of a person under the age of eighteen years, and that discloses any of the following: (a) The address or telephone number of a person under the age of eighteen or the address or telephone number of that person's parent, guardian, custodian, or emergency contact person; (b) The social security number, birth date, or photographic image of a person under the age of eighteen; (c) Any medical record, history, or information pertaining to a person under the age of eighteen; (d) Any additional information sought or required about a person under the age of eighteen for the purpose of allowing that person to participate in any recreational activity conducted or sponsored by a public office or to use or obtain admission privileges to any recreational facility owned or operated by a public office. (9) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code. (10) "Post-release control sanction" has the same meaning as in section 2967.01 of the Revised Code. (11) "Redaction" means obscuring or deleting any information that is exempt from the duty to permit public inspection or copying from an item that otherwise meets the definition of a "record" in section 149.011 [149.01.1] of the Revised Code. (12) "Designee" and "elected official" have the same meanings as in section 109.43 of the Revised Code. (B) (1) Upon request and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Subject to division (B)(8) of this section, upon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time. If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt. When making that public record available for public inspection or copying that public record, the public office or the person responsible for the public record shall notify the requester of any redaction or make the redaction plainly visible. A redaction shall be deemed a denial of a request to inspect or copy the redacted information, except if federal or state law authorizes or requires a public office to make the redaction.

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Appendix A - Statutes (2) To facilitate broader access to public records, a public office or the person responsible for public records shall organize and maintain public records in a manner that they can be made available for inspection or copying in accordance with division (B) of this section. A public office also shall have available a copy of its current records retention schedule at a location readily available to the public. If a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records under this section such that the public office or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public record may deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties. (3) If a request is ultimately denied, in part or in whole, the public office or the person responsible for the requested public record shall provide the requester with an explanation, including legal authority, setting forth why the request was denied. If the initial request was provided in writing, the explanation also shall be provided to the requester in writing. The explanation shall not preclude the public office or the person responsible for the requested public record from relying upon additional reasons or legal authority in defending an action commenced under division (C) of this section. (4) Unless specifically required or authorized by state or federal law or in accordance with division (B) of this section, no public office or person responsible for public records may limit or condition the availability of public records by requiring disclosure of the requester's identity or the intended use of the requested public record. Any requirement that the requester disclose the requestor's identity or the intended use of the requested public record constitutes a denial of the request. (5) A public office or person responsible for public records may ask a requester to make the request in writing, may ask for the requester's identity, and may inquire about the intended use of the information requested, but may do so only after disclosing to the requester that a written request is not mandatory and that the requester may decline to reveal the requester's identity or the intended use and when a written request or disclosure of the identity or intended use would benefit the requester by enhancing the ability of the public office or person responsible for public records to identify, locate, or deliver the public records sought by the requester. (6) If any person chooses to obtain a copy of a public record in accordance with division (B) of this section, the public office or person responsible for the public record may require that person to pay in advance the cost involved in providing the copy of the public record in accordance with the choice made by the person seeking the copy under this division. The public office or the person responsible for the public record shall permit that person to choose to have the public record duplicated upon paper, upon the same medium upon which the public office or person responsible for the public record keeps it, or upon any other medium upon which the public office or person responsible for the public record determines that it reasonably can be duplicated as an integral part of the normal operations of the public office or person responsible for the public record. When the person seeking the copy makes a choice under this division, the public office or person responsible for the public record shall provide a copy of it in accordance with the choice made by the person seeking the copy. Nothing in this section requires a public office or person responsible for the public record to allow the person seeking a copy of the public record to make the copies of the public record. (7) Upon a request made in accordance with division (B) of this section and subject to division (B)(6) of this section, a public office or person responsible for public records shall transmit a copy of a public record to any person by United States mail or by any other means of delivery or transmission within a reasonable period of time after receiving the request for the copy. The public office or person responsible for the public record may require the person making the request to pay in advance the cost of postage if the copy is transmitted by United States mail or the cost of delivery if the copy is transmitted other than by United States mail, and to pay in advance the costs incurred for other supplies used in the mailing, delivery, or transmission.

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Appendix A - Statutes Any public office may adopt a policy and procedures that it will follow in transmitting, within a reasonable period of time after receiving a request, copies of public records by United States mail or by any other means of delivery or transmission pursuant to this division. A public office that adopts a policy and procedures under this division shall comply with them in performing its duties under this division. In any policy and procedures adopted under this division, a public office may limit the number of records requested by a person that the office will transmit by United States mail to ten per month, unless the person certifies to the office in writing that the person does not intend to use or forward the requested records, or the information contained in them, for commercial purposes. For purposes of this division, "commercial" shall be narrowly construed and does not include reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research. (8) A public office or person responsible for public records is not required to permit a person who is incarcerated pursuant to a criminal conviction or a juvenile adjudication to inspect or to obtain a copy of any public record concerning a criminal investigation or prosecution or concerning what would be a criminal investigation or prosecution if the subject of the investigation or prosecution were an adult, unless the request to inspect or to obtain a copy of the record is for the purpose of acquiring information that is subject to release as a public record under this section and the judge who imposed the sentence or made the adjudication with respect to the person, or the judge's successor in office, finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the person. (9) Upon written request made and signed by a journalist on or after December 16, 1999, a public office, or person responsible for public records, having custody of the records of the agency employing a specified peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation shall disclose to the journalist the address of the actual personal residence of the peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation and, if the peace officer's, parole officer's, prosecuting attorney's, assistant prosecuting attorney's, correctional employee's, youth services employee's, firefighter's, EMT's, or investigator of the bureau of criminal identification and investigation's spouse, former spouse, or child is employed by a public office, the name and address of the employer of the peace officer's, parole officer's, prosecuting attorney's, assistant prosecuting attorney's, correctional employee's, youth services employee's, firefighter's, EMT's, or investigator of the bureau of criminal identification and investigation's spouse, former spouse, or child. The request shall include the journalist's name and title and the name and address of the journalist's employer and shall state that disclosure of the information sought would be in the public interest. As used in this division, "journalist" means a person engaged in, connected with, or employed by any news medium, including a newspaper, magazine, press association, news agency, or wire service, a radio or television station, or a similar medium, for the purpose of gathering, processing, transmitting, compiling, editing, or disseminating information for the general public. (C) (1) If a person allegedly is aggrieved by the failure of a public office or the person responsible for public records to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section or by any other failure of a public office or the person responsible for public records to comply with an obligation in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section, that awards court costs and reasonable attorney's fees to the person that instituted the mandamus action, and, if applicable, that includes an order fixing statutory damages under division (C)(1) of this section. The mandamus action may be commenced in the court of common pleas of the county in which division (B) of this section allegedly was not

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Appendix A - Statutes complied with, in the supreme court pursuant to its original jurisdiction under Section 2 of Article IV, Ohio Constitution, or in the court of appeals for the appellate district in which division (B) of this section allegedly was not complied with pursuant to its original jurisdiction under Section 3 of Article IV, Ohio Constitution. If a requestor transmits a written request by hand delivery or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office or person responsible for the requested public records, except as otherwise provided in this section, the requestor shall be entitled to recover the amount of statutory damages set forth in this division if a court determines that the public office or the person responsible for public records failed to comply with an obligation in accordance with division (B) of this section. The amount of statutory damages shall be fixed at one hundred dollars for each business day during which the public office or person responsible for the requested public records failed to comply with an obligation in accordance with division (B) of this section, beginning with the day on which the requester files a mandamus action to recover statutory damages, up to a maximum of one thousand dollars. The award of statutory damages shall not be construed as a penalty, but as compensation for injury arising from lost use of the requested information. The existence of this injury shall be conclusively presumed. The award of statutory damages shall be in addition to all other remedies authorized by this section. The court may reduce an award of statutory damages or not award statutory damages if the court determines both of the following: (a) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public records that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of this section and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with division (B) of this section; (b) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct. (2) (a) If the court issues a writ of mandamus that orders the public office or the person responsible for the public record to comply with division (B) of this section and determines that the circumstances described in division (C)(1) of this section exist, the court shall determine and award to the relator all court costs. (b) If the court renders a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section, the court may award reasonable attorney's fees subject to reduction as described in division (C)(2)(c) of this section. The court shall award reasonable attorney's fees, subject to reduction as described in division (C)(2)(c) of this section when either of the following applies: (i) The public office or the person responsible for the public records failed to respond affirmatively or negatively to the public records request in accordance with the time allowed under division (B) of this section. (ii) The public office or the person responsible for the public records promised to permit the relator to inspect or receive copies of the public records requested within a specified period of time but failed to fulfill that promise within that specified period of time. (c) Court costs and reasonable attorney's fees awarded under this section shall be construed as remedial and not punitive. Reasonable attorney's fees shall include reasonable fees incurred to produce proof of the

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Appendix A - Statutes reasonableness and amount of the fees and to otherwise litigate entitlement to the fees. The court may reduce an award of attorney's fees to the relator or not award attorney's fees to the relator if the court determines both of the following: (i) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public records that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of this section and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with division (B) of this section; (ii) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records as described in division (C)(2)(c)(i) of this section would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct. (D) Chapter 1347 of the Revised Code does not limit the provisions of this section. (E) (1) To ensure that all employees of public offices are appropriately educated about a public office's obligations under division (B) of this section, all elected officials or their appropriate designees shall attend training approved by the attorney general as provided in section 109.43 of the Revised Code. In addition, all public offices shall adopt a public records policy in compliance with this section for responding to public records requests. In adopting a public records policy under this division, a public office may obtain guidance from the model public records policy developed and provided to the public office by the attorney general under section 109.43 of the Revised Code. Except as otherwise provided in this section, the policy may not limit the number of public records that the public office will make available to a single person, may not limit the number of public records that it will make available during a fixed period of time, and may not establish a fixed period of time before it will respond to a request for inspection or copying of public records, unless that period is less than eight hours. (2) The public office shall distribute the public records policy adopted by the public office under division (E)(1) of this section to the employee of the public office who is the records custodian or records manager or otherwise has custody of the records of that office. The public office shall require that employee to acknowledge receipt of the copy of the public records policy. The public office shall create a poster that describes its public records policy and shall post the poster in a conspicuous place in the public office and in all locations where the public office has branch offices. The public office may post its public records policy on the internet web site of the public office if the public office maintains an internet web site. A public office that has established a manual or handbook of its general policies and procedures for all employees of the public office shall include the public records policy of the public office in the manual or handbook. (F) (1) The bureau of motor vehicles may adopt rules pursuant to Chapter 119. of the Revised Code to reasonably limit the number of bulk commercial special extraction requests made by a person for the same records or for updated records during a calendar year. The rules may include provisions for charges to be made for bulk commercial special extraction requests for the actual cost of the bureau, plus special extraction costs, plus ten per cent. The bureau may charge for expenses for redacting information, the release of which is prohibited by law. (2) As used in division (F)(1) of this section: (a) "Actual cost" means the cost of depleted supplies, records storage media costs, actual mailing and alternative delivery costs, or other transmitting costs, and any direct equipment operating and maintenance costs, including actual costs paid to private contractors for copying services.

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Appendix A - Statutes (b) "Bulk commercial special extraction request" means a request for copies of a record for information in a format other than the format already available, or information that cannot be extracted without examination of all items in a records series, class of records, or database by a person who intends to use or forward the copies for surveys, marketing, solicitation, or resale for commercial purposes. "Bulk commercial special extraction request" does not include a request by a person who gives assurance to the bureau that the person making the request does not intend to use or forward the requested copies for surveys, marketing, solicitation, or resale for commercial purposes. (c) "Commercial" means profit-seeking production, buying, or selling of any good, service, or other product. (d) "Special extraction costs" means the cost of the time spent by the lowest paid employee competent to perform the task, the actual amount paid to outside private contractors employed by the bureau, or the actual cost incurred to create computer programs to make the special extraction. "Special extraction costs" include any charges paid to a public agency for computer or records services. (3) For purposes of divisions (F)(1) and (2) of this section, "surveys, marketing, solicitation, or resale for commercial purposes" shall be narrowly construed and does not include reporting or gathering news, reporting or gathering information to assist citizen oversight or understanding of the operation or activities of government, or nonprofit educational research. Most Recent Effective Date: 10-16-2009

Ohio Revised Code § 149.431 – Records of governmental or nonprofit organizations receiving governmental funds (A) Any governmental entity or agency and any nonprofit corporation or association, except a corporation organized pursuant to Chapter 1719. of the Revised Code prior to January 1, 1980 or organized pursuant to Chapter 3941. of the Revised Code, that enters into a contract or other agreement with the federal government, a unit of state government, or a political subdivision or taxing unit of this state for the provision of services shall keep accurate and complete financial records of any moneys expended in relation to the performance of the services pursuant to such contract or agreement according to generally accepted accounting principles. Such contract or agreement and such financial records shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and are subject to the requirements of division (B) of that section, except that: (1) Any information directly or indirectly identifying a present or former individual patient or client or his diagnosis, prognosis, or medical treatment, treatment for a mental or emotional disorder, treatment for mental retardation or a developmental disability, treatment for drug abuse or alcoholism, or counseling for personal or social problems is not a public record; (2) If disclosure of the contract or agreement or financial records is requested at a time when confidential professional services are being provided to a patient or client whose confidentiality might be violated if disclosure were made at that time, disclosure may be deferred if reasonable times are established when the contractor agreement or financial records will be disclosed;

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Appendix A - Statutes (3) Any nonprofit corporation or association that receives both public and private funds in fulfillment of any such contract or other agreement is not required to keep as public records the financial records of any private funds expended in relation to the performance of services pursuant to the contract or agreement. (B) Any nonprofit corporation or association that receives more than fifty per cent of its gross receipts excluding moneys received pursuant to Title XVIII of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301, as amended, in a calendar year in fulfillment of a contract or other agreement for services with a governmental entity shall maintain information setting forth the compensation of any individual serving the nonprofit corporation or association in an executive or administrative capacity. Such information shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and is subject to the requirements of division (B) of that section. Nothing in this section shall be construed to otherwise limit the provisions of section 149.43 of the Revised Code. Effective Date: 07-01-1991

Ohio Revised Code § 149.432 – Releasing library record or patron information (A) As used in this section: (1) “Library” means a library that is open to the public, including any of the following: (a) A library that is maintained and regulated under section 715.13 of the Revised Code; (b) A library that is created, maintained, and regulated under Chapter 3375. of the Revised Code; (c) A library that is created and maintained by a public or private school, college, university, or other educational institution; (d) A library that is created and maintained by a historical or charitable organization, institution, association, or society. “Library” includes the members of the governing body and the employees of a library. (2) “Library record” means a record in any form that is maintained by a library and that contains any of the following types of information: (a) Information that the library requires an individual to provide in order to be eligible to use library services or borrow materials; (b) Information that identifies an individual as having requested or obtained specific materials or materials on a particular subject; (c) Information that is provided by an individual to assist a library staff member to answer a specific question or provide information on a particular subject.

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Appendix A - Statutes “Library record” does not include information that does not identify any individual and that is retained for the purpose of studying or evaluating the use of a library and its materials and services. (3) Subject to division (B)(5) of this section, “patron information” means personally identifiable information about an individual who has used any library service or borrowed any library materials. (B) A library shall not release any library record or disclose any patron information except in the following situations: (1) If a library record or patron information pertaining to a minor child is requested from a library by the minor child’s parent, guardian, or custodian, the library shall make that record or information available to the parent, guardian, or custodian in accordance with division (B) of section 149.43 of the Revised Code. (2) Library records or patron information shall be released in the following situations: (a) In accordance with a subpoena, search warrant, or other court order; (b) To a law enforcement officer who is acting in the scope of the officer’s law enforcement duties and who is investigating a matter involving public safety in exigent circumstances. (3) A library record or patron information shall be released upon the request or with the consent of the individual who is the subject of the record or information. (4) Library records may be released for administrative library purposes, including establishment or maintenance of a system to manage the library records or to assist in the transfer of library records from one records management system to another, compilation of statistical data on library use, and collection of fines and penalties. (5) A library may release under division (B) of section 149.43 of the Revised Code records that document improper use of the internet at the library so long as any patron information is removed from those records. As used in division (B)(5) of this section, “patron information” does not include information about the age or gender of an individual. Most Recent Effective Date: 11-05-2004

Ohio Revised Code § 149.433 – Exempting security and infrastructure records (A) As used in this section: (1) “Act of terrorism” has the same meaning as in section 2909.21 of the Revised Code. (2) “Infrastructure record” means any record that discloses the configuration of a public office’s or chartered nonpublic school’s critical systems including, but not limited to, communication, computer, electrical, mechanical, ventilation, water, and plumbing systems, security codes, or the infrastructure or structural configuration of the building in which a public office or chartered nonpublic school is located. “Infrastructure record” does not mean a simple floor plan that discloses only the spatial relationship of components of a public office or chartered nonpublic school or the building in which a public office or chartered nonpublic school is located.

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Appendix A - Statutes (3) “Security record” means any of the following: (a) Any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage; (b) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or respond to acts of terrorism, including any of the following: (i) Those portions of records containing specific and unique vulnerability assessments or specific and unique response plans either of which is intended to prevent or mitigate acts of terrorism, and communication codes or deployment plans of law enforcement or emergency response personnel; (ii) Specific intelligence information and specific investigative records shared by federal and international law enforcement agencies with state and local law enforcement and public safety agencies; (iii) National security records classified under federal executive order and not subject to public disclosure under federal law that are shared by federal agencies, and other records related to national security briefings to assist state and local government with domestic preparedness for acts of terrorism. (c) A school safety plan adopted pursuant to section 3313.536 of the Revised Code. (B) A record kept by a public office that is a security record or an infrastructure record is not a public record under section 149.43 of the Revised Code and is not subject to mandatory release or disclosure under that section. (C) Notwithstanding any other section of the Revised Code, disclosure by a public office, public employee, chartered nonpublic school, or chartered nonpublic school employee of a security record or infrastructure record that is necessary for construction, renovation, or remodeling work on any public building or project or chartered nonpublic school does not constitute public disclosure for purposes of waiving division (B) of this section and does not result in that record becoming a public record for purposes of section 149.43 of the Revised Code. Most Recent Effective Date: 09-28-2006

Ohio Revised Code § 149.434 – Public offices to maintain employee database (A) Each public office or person responsible for public records shall maintain a database or a list that includes the name and date of birth of all public officials and employees elected to or employed by that public office. The database or list is a public record and shall be made available upon a request made pursuant to section 149.43 of the Revised Code. (B) As used in this section: (1) “Employee” has the same meaning as in section 9.40 of the Revised Code. (2) “Public official” has the same meaning as in section 117.01 of the Revised Code. (3) “Public record” has the same meaning as in section 149.43 of the Revised Code. Most Recent Effective Date: 09-01-2008

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Appendix A - Statutes Ohio Revised Code § 149.44 – Rules and procedures for operation of state records centers and archival institutions holding public records Any state records center or archival institution established pursuant to sections 149.31 and 149.331 of the Revised Code is an extension of the departments, offices, and institutions of the state and all state and local records transferred to records centers and archival institutions shall be available for use under section 149.43 of the Revised Code. The state records administration, assisted by the state archivist, shall establish rules and procedures for the operation of state records centers and archival institutions holding public records, respectively. Most Recent Effective Date: 07-01-1985

Ohio Revised Code § 149.45 – Redacting, encrypting, or truncating personal information; request by protected individual A) As used in this section: (1) "Personal information" means any of the following: (a) An individual's social security number; (b) An individual's federal tax identification number; (c) An individual's driver's license number or state identification number; (d) An individual's checking account number, savings account number, or credit card number. (2) "Public record" and "peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation residential and familial information" have the same meanings as in section 149.43 of the Revised Code. (3) "Truncate" means to redact all but the last four digits of an individual's social security number. (B) (1) No public office or person responsible for a public office's public records shall make available to the general public on the internet any document that contains an individual's social security number without otherwise redacting, encrypting, or truncating the social security number. (2) A public office or person responsible for a public office's public records that prior to the effective date of this section made available to the general public on the internet any document that contains an individual's social security number shall redact, encrypt, or truncate the social security number from that document. (3) Divisions (B)(1) and (2) of this section do not apply to documents that are only accessible through the internet with a password. (C) (1) An individual may request that a public office or a person responsible for a public office's public records redact personal information of that individual from any record made available to the general public on

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Appendix A - Statutes the internet. An individual who makes a request for redaction pursuant to this division shall make the request in writing on a form developed by the attorney general and shall specify the personal information to be redacted and provide any information that identifies the location of that personal information within a document that contains that personal information. (2) Upon receiving a request for a redaction pursuant to division (C)(1) of this section, a public office or a person responsible for a public office's public records shall act within five business days in accordance with the request to redact the personal information of the individual from any record made available to the general public on the internet, if practicable. If a redaction is not practicable, the public office or person responsible for the public office's public records shall verbally or in writing within five business days after receiving the written request explain to the individual why the redaction is impracticable. (3) The attorney general shall develop a form to be used by an individual to request a redaction pursuant to division (C)(1) of this section. The form shall include a place to provide any information that identifies the location of the personal information to be redacted. (D) (1) A peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation may request that a public office other than a county auditor or a person responsible for the public records of a public office other than a county auditor redact the address of the person making the request from any record made available to the general public on the internet that includes peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation residential and familial information of the person making the request. A person who makes a request for a redaction pursuant to this division shall make the request in writing and on a form developed by the attorney general. (2) Upon receiving a written request for a redaction pursuant to division (D)(1) of this section, a public office other than a county auditor or a person responsible for the public records of a public office other than a county auditor shall act within five business days in accordance with the request to redact the address of the peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation making the request from any record made available to the general public on the internet that includes peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation residential and familial information of the person making the request, if practicable. If a redaction is not practicable, the public office or person responsible for the public office's public records shall verbally or in writing within five business days after receiving the written request explain to the peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation why the redaction is impracticable. (3) Except as provided in this section and section 319.28 of the Revised Code, a public office other than an employer of a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation or a person responsible for the public records of the employer is not required to redact the residential and familial information of the peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation from other records maintained by the public office. (4) The attorney general shall develop a form to be used by a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation to request a redaction pursuant to division (D)(1) of this section. The form shall include a place to provide any information that identifies the location of

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Appendix A - Statutes the address of a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation to be redacted. (E) (1) If a public office or a person responsible for a public office's public records becomes aware that an electronic record of that public office that is made available to the general public on the internet contains an individual's social security number that was mistakenly not redacted, encrypted, or truncated as required by division (B)(1) or (2) of this section, the public office or person responsible for the public office's public records shall redact, encrypt, or truncate the individual's social security number within a reasonable period of time. (2) A public office or a person responsible for a public office's public records is not liable in damages in a civil action for any harm an individual allegedly sustains as a result of the inclusion of that individual's personal information on any record made available to the general public on the internet or any harm a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation sustains as a result of the inclusion of the address of the peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, youth services employee, firefighter, EMT, or investigator of the bureau of criminal identification and investigation on any record made available to the general public on the internet in violation of this section unless the public office or person responsible for the public office's public records acted with malicious purpose, in bad faith, or in a wanton or reckless manner or division (A)(6)(a) or (c) of section 2744.03 of the Revised Code applies. Most Recent Effective Date: 10-16-2009

Ohio Revised Code § 121.22 – Meetings of public bodies to be public; exceptions (A) This section shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law. (B) As used in this section: (1) "Public body" means any of the following: (a) Any board, commission, committee, council, or similar decision-making body of a state agency, institution, or authority, and any legislative authority or board, commission, committee, council, agency, authority, or similar decision-making body of any county, township, municipal corporation, school district, or other political subdivision or local public institution; (b) Any committee or subcommittee of a body described in division (B)(1)(a) of this section; (c) A court of jurisdiction of a sanitary district organized wholly for the purpose of providing a water supply for domestic, municipal, and public use when meeting for the purpose of the appointment, removal, or reappointment of a member of the board of directors of such a district pursuant to section 6115.10 of the Revised Code, if applicable, or for any other matter related to such a district other than litigation involving the district. As used in division (B)(1)(c) of this section, "court of jurisdiction" has the same meaning as "court" in section 6115.01 of the Revised Code. (2) "Meeting" means any prearranged discussion of the public business of the public body by a majority of its members.

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Appendix A - Statutes (3) "Regulated individual" means either of the following: (a) A student in a state or local public educational institution; (b) A person who is, voluntarily or involuntarily, an inmate, patient, or resident of a state or local institution because of criminal behavior, mental illness or retardation, disease, disability, age, or other condition requiring custodial care. (4) "Public office" has the same meaning as in section 149.011 [149.01.1] of the Revised Code. (C) All meetings of any public body are declared to be public meetings open to the public at all times. A member of a public body shall be present in person at a meeting open to the public to be considered present or to vote at the meeting and for purposes of determining whether a quorum is present at the meeting. The minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and maintained and shall be open to public inspection. The minutes need only reflect the general subject matter of discussions in executive sessions authorized under division (G) or (J) of this section. (D) This section does not apply to any of the following: (1) A grand jury; (2) An audit conference conducted by the auditor of state or independent certified public accountants with officials of the public office that is the subject of the audit; (3) The adult parole authority when its hearings are conducted at a correctional institution for the sole purpose of interviewing inmates to determine parole or pardon; (4) The organized crime investigations commission established under section 177.01 of the Revised Code; (5) Meetings of a child fatality review board established under section 307.621 [307.62.1] of the Revised Code and meetings conducted pursuant to sections 5153.171 [5153.17.1] to 5153.173 [5153.17.3] of the Revised Code; (6) The state medical board when determining whether to suspend a certificate without a prior hearing pursuant to division (G) of either section 4730.25 or 4731.22 of the Revised Code; (7) The board of nursing when determining whether to suspend a license or certificate without a prior hearing pursuant to division (B) of section 4723.281 [4723.28.1] of the Revised Code; (8) The state board of pharmacy when determining whether to suspend a license without a prior hearing pursuant to division (D) of section 4729.16 of the Revised Code; (9) The state chiropractic board when determining whether to suspend a license without a hearing pursuant to section 4734.37 of the Revised Code. (10) The executive committee of the emergency response commission when determining whether to issue an enforcement order or request that a civil action, civil penalty action, or criminal action be brought to enforce Chapter 3750. of the Revised Code. (E) The controlling board, the development financing advisory council, the industrial technology and enterprise advisory council, the tax credit authority, or the minority development financing advisory board,

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Appendix A - Statutes when meeting to consider granting assistance pursuant to Chapter 122. or 166. of the Revised Code, in order to protect the interest of the applicant or the possible investment of public funds, by unanimous vote of all board, council, or authority members present, may close the meeting during consideration of the following information confidentially received by the authority, council, or board from the applicant: (1) Marketing plans; (2) Specific business strategy; (3) Production techniques and trade secrets; (4) Financial projections; (5) Personal financial statements of the applicant or members of the applicant's immediate family, including, but not limited to, tax records or other similar information not open to public inspection. The vote by the authority, council, or board to accept or reject the application, as well as all proceedings of the authority, council, or board not subject to this division, shall be open to the public and governed by this section. (F) Every public body, by rule, shall establish a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings and the time, place, and purpose of all special meetings. A public body shall not hold a special meeting unless it gives at least twenty-four hours' advance notice to the news media that have requested notification, except in the event of an emergency requiring immediate official action. In the event of an emergency, the member or members calling the meeting shall notify the news media that have requested notification immediately of the time, place, and purpose of the meeting. The rule shall provide that any person, upon request and payment of a reasonable fee, may obtain reasonable advance notification of all meetings at which any specific type of public business is to be discussed. Provisions for advance notification may include, but are not limited to, mailing the agenda of meetings to all subscribers on a mailing list or mailing notices in self-addressed, stamped envelopes provided by the person. (G) Except as provided in division (J) of this section, the members of a public body may hold an executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session and only at a regular or special meeting for the sole purpose of the consideration of any of the following matters: (1) To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the public employee, official, licensee, or regulated individual requests a public hearing. Except as otherwise provided by law, no public body shall hold an executive session for the discipline of an elected official for conduct related to the performance of the elected official's official duties or for the elected official's removal from office. If a public body holds an executive session pursuant to division (G)(1) of this section, the motion and vote to hold that executive session shall state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held, but need not include the name of any person to be considered at the meeting. (2) To consider the purchase of property for public purposes, or for the sale of property at competitive bidding, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest. No member of a public body shall use division (G)(2) of this section as a subterfuge for providing covert information to prospective buyers or sellers. A purchase or sale of public property is void if the seller or buyer of the public property has

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Appendix A - Statutes received covert information from a member of a public body that has not been disclosed to the general public in sufficient time for other prospective buyers and sellers to prepare and submit offers. If the minutes of the public body show that all meetings and deliberations of the public body have been conducted in compliance with this section, any instrument executed by the public body purporting to convey, lease, or otherwise dispose of any right, title, or interest in any public property shall be conclusively presumed to have been executed in compliance with this section insofar as title or other interest of any bona fide purchasers, lessees, or transferees of the property is concerned. (3) Conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action; (4) Preparing for, conducting, or reviewing negotiations or bargaining sessions with public employees concerning their compensation or other terms and conditions of their employment; (5) Matters required to be kept confidential by federal law or regulations or state statutes; (6) Details relative to the security arrangements and emergency response protocols for a public body or a public office, if disclosure of the matters discussed could reasonably be expected to jeopardize the security of the public body or public office; (7) In the case of a county hospital operated pursuant to Chapter 339. of the Revised Code, a joint township hospital operated pursuant to Chapter 513. of the Revised Code, or a municipal hospital operated pursuant to Chapter 749. of the Revised Code, to consider trade secrets, as defined in section 1333.61 of the Revised Code. If a public body holds an executive session to consider any of the matters listed in divisions (G)(2) to (7) of this section, the motion and vote to hold that executive session shall state which one or more of the approved matters listed in those divisions are to be considered at the executive session. A public body specified in division (B)(1)(c) of this section shall not hold an executive session when meeting for the purposes specified in that division. (H) A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in division (G) or (J) of this section and conducted at an executive session held in compliance with this section. A resolution, rule, or formal action adopted in an open meeting is invalid if the public body that adopted the resolution, rule, or formal action violated division (F) of this section. (I) (1) Any person may bring an action to enforce this section. An action under division (I)(1) of this section shall be brought within two years after the date of the alleged violation or threatened violation. Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions. (2) (a) If the court of common pleas issues an injunction pursuant to division (I)(1) of this section, the court shall order the public body that it enjoins to pay a civil forfeiture of five hundred dollars to the party that sought the injunction and shall award to that party all court costs and, subject to reduction as described in division (I)(2) of this section, reasonable attorney's fees. The court, in its discretion, may reduce an award of attorney's fees to the party that sought the injunction or not award attorney's fees to that party if the court determines both of the following:

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Appendix A - Statutes (i) That, based on the ordinary application of statutory law and case law as it existed at the time of violation or threatened violation that was the basis of the injunction, a well-informed public body reasonably would believe that the public body was not violating or threatening to violate this section; (ii) That a well-informed public body reasonably would believe that the conduct or threatened conduct that was the basis of the injunction would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct. (b) If the court of common pleas does not issue an injunction pursuant to division (I)(1) of this section and the court determines at that time that the bringing of the action was frivolous conduct, as defined in division (A) of section 2323.51 of the Revised Code, the court shall award to the public body all court costs and reasonable attorney's fees, as determined by the court. (3) Irreparable harm and prejudice to the party that sought the injunction shall be conclusively and irrebuttably presumed upon proof of a violation or threatened violation of this section. (4) A member of a public body who knowingly violates an injunction issued pursuant to division (I)(1) of this section may be removed from office by an action brought in the court of common pleas for that purpose by the prosecuting attorney or the attorney general. (J) (1) Pursuant to division (C) of section 5901.09 of the Revised Code, a veterans service commission shall hold an executive session for one or more of the following purposes unless an applicant requests a public hearing: (a) Interviewing an applicant for financial assistance under sections 5901.01 to 5901.15 of the Revised Code; (b) Discussing applications, statements, and other documents described in division (B) of section 5901.09 of the Revised Code; (c) Reviewing matters relating to an applicant's request for financial assistance under sections 5901.01 to 5901.15 of the Revised Code. (2) A veterans service commission shall not exclude an applicant for, recipient of, or former recipient of financial assistance under sections 5901.01 to 5901.15 of the Revised Code, and shall not exclude representatives selected by the applicant, recipient, or former recipient, from a meeting that the commission conducts as an executive session that pertains to the applicant's, recipient's, or former recipient's application for financial assistance. (3) A veterans service commission shall vote on the grant or denial of financial assistance under sections 5901.01 to 5901.15 of the Revised Code only in an open meeting of the commission. The minutes of the meeting shall indicate the name, address, and occupation of the applicant, whether the assistance was granted or denied, the amount of the assistance if assistance is granted, and the votes for and against the granting of assistance. Most Recent Effective Date: 02-12-2008

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Appendix A - Statutes Ohio Revised Code § 1347.01 – Personal Information Systems Act: Definitions As used in this chapter, except as otherwise provided: (A) "State agency" means the office of any elected state officer and any agency, board, commission, department, division, or educational institution of the state. (B) "Local agency" means any municipal corporation, school district, special purpose district, or township of the state or any elected officer or board, bureau, commission, department, division, institution, or instrumentality of a county. (C) "Special purpose district" means any geographic or political jurisdiction that is created by statute to perform a limited and specific function, and includes, but is not limited to, library districts, conservancy districts, metropolitan housing authorities, park districts, port authorities, regional airport authorities, regional transit authorities, regional water and sewer districts, sanitary districts, soil and water conservation districts, and regional planning agencies. (D) "Maintains" means state or local agency ownership of, control over, responsibility for, or accountability for systems and includes, but is not limited to, state or local agency depositing or information with a data processing center for storage, processing, or dissemination. An agency "maintains" all systems of records that are required by law to be kept by the agency. (E) "Personal information" means any information that describes anything about a person, or that indicates actions done by or to a person, or that indicates that a person possesses certain personal characteristics, and that contains, and can be retrieved from a system by, a name, identifying number, symbol, or other identifier assigned to a person. (F) "System" means any collection or group of related records that are kept in an organized manner and that are maintained by a state or local agency, and from which personal information is retrieved by the name of the person or by some identifying number, symbol, or other identifier assigned to the person. "System" includes both records that are manually stored and records that are stored using electronic data processing equipment. "System" does not include collected archival records in the custody of or administered under the authority of the Ohio historical society, published directories, reference materials or newsletters, or routine information that is maintained for the purpose of internal office administration, the use of which would not adversely affect a person. (G) "Interconnection of systems" means a linking of systems that belong to more than one agency or to an agency and other organizations, which linking of systems results in a system that permits each agency or organization involved in the linking to have unrestricted access to the systems of the other agencies and organizations. (H) "Combination of systems" means a unification of systems that belong to more than one agency, or to an agency and another organization, into a single system in which the records that belong to each agency or organization may or may not be obtainable by the others. Most Recent Effective Date: 02-17-2006

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Appendix A - Statutes Ohio Revised Code § 1347.04 – Exemptions (A) (1) Except as provided in division (A)(2) of this section or division (C)(2) of section 1347.08 of the Revised Code, the following are exempt from the provisions of this chapter: (a) Any state or local agency, or part of a state or local agency, that performs as its principal function any activity relating to the enforcement of the criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals; (b) The criminal courts; (c) Prosecutors; (d) Any state or local agency or part of any state or local agency that is a correction, probation, pardon, or parole authority; (e) Personal information systems that are comprised of investigatory material compiled for law enforcement purposes by agencies that are not described in divisions (A)(1)(a) and (d) of this section. (2) A part of a state or local agency that does not perform, as its principal function, an activity relating to the enforcement of the criminal laws is not exempt under this section. (B) The provisions of this chapter shall not be construed to prohibit the release of public records, or the disclosure of personal information in public records, as defined in section 149.43 of the Revised Code, or to authorize a public body to hold an executive session for the discussion of personal information if the executive session is not authorized under division (G) of section 121.22 of the Revised Code. The disclosure to members of the general public of personal information contained in a public record, as defined in section 149.43 of the Revised Code, is not an improper use of personal information under this chapter. (C) The provisions of this chapter shall not be construed to prohibit, and do not prohibit, compliance with any order issued pursuant to division (D)(1) of section 2151.14 of the Revised Code, any request for records that is properly made pursuant to division (D)(3)(a) of section 2151.14 or division (A) of section 2151.141 [2151.14.1] of the Revised Code, or any determination that is made by a court pursuant to division (D)(3)(b) of section 2151.14 or division (B)(1) of section 2151.141 [2151.14.1] of the Revised Code. Most Recent Effective Date: 10-25-1995

Ohio Revised Code § 1347.05 – Duties of state and local agencies maintaining personal information systems Every state or local agency that maintains a personal information system shall: (A) Appoint one individual to be directly responsible for the system; (B) Adopt and implement rules that provide for the operation of the system in accordance with the provisions of this chapter that, in the case of state agencies, apply to state agencies or, in the case of local agencies, apply to local agencies;

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Appendix A - Statutes (C) Inform each of its employees who has any responsibility for the operation or maintenance of the system, or for the use of personal information maintained in the system, of the applicable provisions of this chapter and of all rules adopted in accordance with this section; (D) Specify disciplinary measures to be applied to any employee who initiates or otherwise contributes to any disciplinary or other punitive action against any individual who brings to the attention of appropriate authorities, the press, or any member of the public, evidence of unauthorized use of information contained in the system; (E) Inform a person who is asked to supply personal information for a system whether the person is legally required to, or may refuse to, supply the information; (F) Develop procedures for purposes of monitoring the accuracy, relevance, timeliness, and completeness of the personal information in this system, and, in accordance with the procedures, maintain the personal information in the system with the accuracy, relevance, timeliness, and completeness that is necessary to assure fairness in any determination made with respect to a person on the basis of the information; (G) Take reasonable precautions to protect personal information in the system from unauthorized modification, destruction, use, or disclosure; (H) Collect, maintain, and use only personal information that is necessary and relevant to the functions that the agency is required or authorized to perform by statute, ordinance, code, or rule, and eliminate personal information from the system when it is no longer necessary and relevant to those functions. Most Recent Effective Date: 01-23-1981

Ohio Revised Code § 1347.06 – Administrative rules The director of administrative services shall adopt, amend, and rescind rules pursuant to Chapter 119. of the Revised Code for the purposes of administering and enforcing the provisions of this chapter that pertain to state agencies. A state or local agency that, or an officer or employee of a state or local agency who, complies in good faith with a rule applicable to the agency is not subject to criminal prosecution or civil liability under this chapter. Most Recent Effective Date: 01-23-1981

Ohio Revised Code § 1347.07 – Use of personal information A state or local agency shall only use the personal information in a personal information system in a manner that is consistent with the purposes of the system. Most Recent Effective Date: 01-23-1981

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Appendix A - Statutes Ohio Revised Code § 1347.071 – Interconnected or combined systems (A) No state or local agency shall place personal information in an interconnected or combined system, or use personal information that is placed in an interconnected or combined system by another state or local agency or another organization, unless the interconnected or combined system will contribute to the efficiency of the involved agencies in implementing programs that are authorized by law. (B) No state or local agency shall use personal information that is placed in an interconnected or combined system by another state or local agency or another organization, unless the personal information is necessary and relevant to the performance of a lawful function of the agency. (C) When a state or local agency requests a person to supply personal information that will be placed in an interconnected or combined system, the agency shall provide the person with information relevant to the system, including the identity of the other agencies or organizations that have access to the information in the system. Most Recent Effective Date: 01-23-1981

Ohio Revised Code § 1347.08 – Rights of subject of personal information (A) Every state or local agency that maintains a personal information system, upon the request and the proper identification of any person who is the subject of personal information in the system, shall: (1) Inform the person of the existence of any personal information in the system of which the person is the subject; (2) Except as provided in divisions (C) and (E)(2) of this section, permit the person, the person's legal guardian, or an attorney who presents a signed written authorization made by the person, to inspect all personal information in the system of which the person is the subject; (3) Inform the person about the types of uses made of the personal information, including the identity of any users usually granted access to the system. (B) Any person who wishes to exercise a right provided by this section may be accompanied by another individual of the person's choice. (C) (1) A state or local agency, upon request, shall disclose medical, psychiatric, or psychological information to a person who is the subject of the information or to the person's legal guardian, unless a physician, psychiatrist, or psychologist determines for the agency that the disclosure of the information is likely to have an adverse effect on the person, in which case the information shall be released to a physician, psychiatrist, or psychologist who is designated by the person or by the person's legal guardian. (2) Upon the signed written request of either a licensed attorney at law or a licensed physician designated by the inmate, together with the signed written request of an inmate of a correctional institution under the administration of the department of rehabilitation and correction, the department shall disclose medical information to the designated attorney or physician as provided in division (C) of section 5120.21 of the Revised Code.

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Appendix A - Statutes (D) If an individual who is authorized to inspect personal information that is maintained in a personal information system requests the state or local agency that maintains the system to provide a copy of any personal information that the individual is authorized to inspect, the agency shall provide a copy of the personal information to the individual. Each state and local agency may establish reasonable fees for the service of copying, upon request, personal information that is maintained by the agency. (E) (1) This section regulates access to personal information that is maintained in a personal information system by persons who are the subject of the information, but does not limit the authority of any person, including a person who is the subject of personal information maintained in a personal information system, to inspect or have copied, pursuant to section 149.43 of the Revised Code, a public record as defined in that section. (2) This section does not provide a person who is the subject of personal information maintained in a personal information system, the person's legal guardian, or an attorney authorized by the person, with a right to inspect or have copied, or require an agency that maintains a personal information system to permit the inspection of or to copy, a confidential law enforcement investigatory record or trial preparation record, as defined in divisions (A)(2) and (4) of section 149.43 of the Revised Code. (F) This section does not apply to any of the following: (1) The contents of an adoption file maintained by the department of health under section 3705.12 of the Revised Code; (2) Information contained in the putative father registry established by section 3107.062 [3107.06.2] of the Revised Code, regardless of whether the information is held by the department of job and family services or, pursuant to section 3111.69 of the Revised Code, the office of child support in the department or a child support enforcement agency; (3) Papers, records, and books that pertain to an adoption and that are subject to inspection in accordance with section 3107.17 of the Revised Code; (4) Records listed in division (A) of section 3107.42 of the Revised Code or specified in division (A) of section 3107.52 of the Revised Code; (5) Records that identify an individual described in division (A)(1) of section 3721.031 [3721.03.1] of the Revised Code, or that would tend to identify such an individual; (6) Files and records that have been expunged under division (D)(1) or (2) of section 3721.23 of the Revised Code; (7) Records that identify an individual described in division (A)(1) of section 3721.25 of the Revised Code, or that would tend to identify such an individual; (8) Records that identify an individual described in division (A)(1) of section 5111.61 of the Revised Code, or that would tend to identify such an individual; (9) Test materials, examinations, or evaluation tools used in an examination for licensure as a nursing home administrator that the board of examiners of nursing home administrators administers under section 4751.04 of the Revised Code or contracts under that section with a private government entity to administer; (10) Information contained in a database established and maintained pursuant to section 5101.13 of the Revised Code. Most Recent Effective Date: 10-16-2009

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Appendix A - Statutes Ohio Revised Code § 1347.09 – Disputed information; duties of agency (A) (1) If any person disputes the accuracy, relevance, timeliness, or completeness of personal information that pertains to him and that is maintained by any state or local agency in a personal information system, he may request the agency to investigate the current status of the information. The agency shall, within a reasonable time after, but not later than ninety days after, receiving the request from the disputant, make a reasonable investigation to determine whether the disputed information is accurate, relevant, timely, and complete, and shall notify the disputant of the results of the investigation and of the action that the agency plans to take with respect to the disputed information. The agency shall delete any information that it cannot verify or that it finds to be inaccurate. (2) If after an agency's determination, the disputant is not satisfied, the agency shall do either of the following: (a) Permit the disputant to include within the system a brief statement of his position on the disputed information. The agency may limit the statement to not more than one hundred words if the agency assists the disputant to write a clear summary of the dispute. (b) Permit the disputant to include within the system a notation that the disputant protests that the information is inaccurate, irrelevant, outdated, or incomplete. The agency shall maintain a copy of the disputant's statement of the dispute. The agency may limit the statement to not more than one hundred words if the agency assists the disputant to write a clear summary of the dispute. (3) The agency shall include the statement or notation in any subsequent transfer, report, or dissemination of the disputed information and may include with the statement or notation of the disputant a statement by the agency that it has reasonable grounds to believe that the dispute is frivolous or irrelevant, and of the reasons for its belief. (B) The presence of contradictory information in the disputant's file does not alone constitute reasonable grounds to believe that the dispute is frivolous or irrelevant. (C) Following any deletion of information that is found to be inaccurate or the accuracy of which can no longer be verified, or if a statement of dispute was filed by the disputant, the agency shall, at the written request of the disputant, furnish notification that the information has been deleted, or furnish a copy of the disputant's statement of the dispute, to any person specifically designated by the person. The agency shall clearly and conspicuously disclose to the disputant that he has the right to make such a request to the agency. Most Recent Effective Date: 01-23-1981

Ohio Revised Code § 1347.10 – Liability for wrongful disclosure; limitation of action (A) A person who is harmed by the use of personal information that relates to him and that is maintained in a personal information system may recover damages in civil action from any person who directly and proximately caused the harm by doing any of the following: (1) Intentionally maintaining personal information that he knows, or has reason to know, is inaccurate, irrelevant, no longer timely, or incomplete and may result in such harm;

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Appendix A - Statutes (2) Intentionally using or disclosing the personal information in a manner prohibited by law; (3) Intentionally supplying personal information for storage in, or using or disclosing personal information maintained in, a personal information system, that he knows, or has reason to know, is false; (4) Intentionally denying to the person the right to inspect and dispute the personal information at a time when inspection or correction might have prevented the harm. An action under this division shall be brought within two years after the cause of action accrued or within six months after the wrongdoing is discovered, whichever is later; provided that no action shall be brought later than six years after the cause of action accrued. The cause of action accrues at the time that the wrongdoing occurs. (B) Any person who, or any state or local agency that, violates or proposes to violate any provision of this chapter may be enjoined by any court of competent jurisdiction. The court may issue an order or enter a judgment that is necessary to ensure compliance with the applicable provisions of this chapter or to prevent the use of any practice that violates this chapter. An action for an injunction may be prosecuted by the person who is the subject of the violation, by the attorney general, or by any prosecuting attorney. Most Recent Effective Date: 01-23-1981

Ohio Revised Code § 1347.12 – Disclosure or notification by state or local agency of breach of security of personal information system (A) As used in this section: (1) "Agency of a political subdivision" means each organized body, office, or agency established by a political subdivision for the exercise of any function of the political subdivision, except that "agency of a political subdivision" does not include an agency that is a covered entity as defined in 45 C.F.R. 160.103, as amended. (2) (a) "Breach of the security of the system" means unauthorized access to and acquisition of computerized data that compromises the security or confidentiality of personal information owned or licensed by a state agency or an agency of a political subdivision and that causes, reasonably is believed to have caused, or reasonably is believed will cause a material risk of identity theft or other fraud to the person or property of a resident of this state. (b) For purposes of division (A)(2)(a) of this section: (i) Good faith acquisition of personal information by an employee or agent of the state agency or agency of the political subdivision for the purposes of the agency is not a breach of the security of the system, provided that the personal information is not used for an unlawful purpose or subject to further unauthorized disclosure. (ii) Acquisition of personal information pursuant to a search warrant, subpoena, or other court order, or pursuant to a subpoena, order, or duty of a regulatory state agency, is not a breach of the security of the system. (3) "Consumer reporting agency that compiles and maintains files on consumers on a nationwide basis" means a consumer reporting agency that regularly engages in the practice of assembling or evaluating, and maintaining, for the purpose of furnishing consumer reports to third parties bearing on a consumer's

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Appendix A - Statutes creditworthiness, credit standing, or credit capacity, each of the following regarding consumers residing nationwide: (a) Public record information; (b) Credit account information from persons who furnish that information regularly and in the ordinary course of business. (4) "Encryption" means the use of an algorithmic process to transform data into a form in which there is a low probability of assigning meaning without use of a confidential process or key. (5) "Individual" means a natural person. (6) (a) "Personal information" means, notwithstanding section 1347.01 of the Revised Code, an individual's name, consisting of the individual's first name or first initial and last name, in combination with and linked to any one or more of the following data elements, when the data elements are not encrypted, redacted, or altered by any method or technology in such a manner that the data elements are unreadable: (i) Social security number; (ii) Driver's license number or state identification card number; (iii) Account number or credit or debit card number, in combination with and linked to any required security code, access code, or password that would permit access to an individual's financial account. (b) "Personal information" does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records or any of the following media that are widely distributed: (i) Any news, editorial, or advertising statement published in any bona fide newspaper, journal, or magazine, or broadcast over radio or television; (ii) Any gathering or furnishing of information or news by any bona fide reporter, correspondent, or news bureau to news media described in division (A)(6)(b)(i) of this section; (iii) Any publication designed for and distributed to members of any bona fide association or charitable or fraternal nonprofit corporation; (iv) Any type of media similar in nature to any item, entity, or activity identified in division (A)(6)(b)(i), (ii), or (iii) of this section. (7) "Political subdivision" has the same meaning as in section 2744.01 of the Revised Code. (8) "Record" means any information that is stored in an electronic medium and is retrievable in perceivable form. "Record" does not include any publicly available directory containing information an individual voluntarily has consented to have publicly disseminated or listed, such as name, address, or telephone number. (9) "Redacted" means altered or truncated so that no more than the last four digits of a social security number, driver's license number, state identification card number, account number, or credit or debit card number is accessible as part of the data. (10) "State agency" has the same meaning as in section 1.60 of the Revised Code, except that "state agency" does not include an agency that is a covered entity as defined in 45 C.F.R. 160.103, as amended.

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Appendix A - Statutes (11) "System" means, notwithstanding section 1347.01 of the Revised Code, any collection or group of related records that are kept in an organized manner, that are maintained by a state agency or an agency of a political subdivision, and from which personal information is retrieved by the name of the individual or by some identifying number, symbol, or other identifier assigned to the individual. "System" does not include any collected archival records in the custody of or administered under the authority of the Ohio historical society, any published directory, any reference material or newsletter, or any routine information that is maintained for the purpose of internal office administration of the agency, if the use of the directory, material, newsletter, or information would not adversely affect an individual and if there has been no unauthorized external breach of the directory, material, newsletter, or information. (B) (1) Any state agency or agency of a political subdivision that owns or licenses computerized data that includes personal information shall disclose any breach of the security of the system, following its discovery or notification of the breach of the security of the system, to any resident of this state whose personal information was, or reasonably is believed to have been, accessed and acquired by an unauthorized person if the access and acquisition by the unauthorized person causes or reasonably is believed will cause a material risk of identity theft or other fraud to the resident. The disclosure described in this division may be made pursuant to any provision of a contract entered into by the state agency or agency of a political subdivision with any person or another state agency or agency of a political subdivision prior to the date the breach of the security of the system occurred if that contract does not conflict with any provision of this section. For purposes of this section, a resident of this state is an individual whose principal mailing address as reflected in the records of the state agency or agency of a political subdivision is in this state. (2) The state agency or agency of a political subdivision shall make the disclosure described in division (B)(1) of this section in the most expedient time possible but not later than forty-five days following its discovery or notification of the breach in the security of the system, subject to the legitimate needs of law enforcement activities described in division (D) of this section and consistent with any measures necessary to determine the scope of the breach, including which residents' personal information was accessed and acquired, and to restore the reasonable integrity of the data system. (C) Any state agency or agency of a political subdivision that, on behalf of or at the direction of another state agency or agency of a political subdivision, is the custodian of or stores computerized data that includes personal information shall notify that other state agency or agency of a political subdivision of any breach of the security of the system in an expeditious manner, if the personal information was, or reasonably is believed to have been, accessed and acquired by an unauthorized person and if the access and acquisition by the unauthorized person causes or reasonably is believed will cause a material risk of identity theft or other fraud to a resident of this state. (D) The state agency or agency of a political subdivision may delay the disclosure or notification required by division (B), (C), or (F) of this section if a law enforcement agency determines that the disclosure or notification will impede a criminal investigation or jeopardize homeland or national security, in which case, the state agency or agency of a political subdivision shall make the disclosure or notification after the law enforcement agency determines that disclosure or notification will not compromise the investigation or jeopardize homeland or national security. (E) For purposes of this section, a state agency or agency of a political subdivision may disclose or make a notification by any of the following methods: (1) Written notice; (2) Electronic notice, if the state agency's or agency of a political subdivision's primary method of communication with the resident to whom the disclosure must be made is by electronic means;

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Appendix A - Statutes (3) Telephone notice; (4) Substitute notice in accordance with this division, if the state agency or agency of a political subdivision required to disclose demonstrates that the agency does not have sufficient contact information to provide notice in a manner described in division (E)(1), (2), or (3) of this section, or that the cost of providing disclosure or notice to residents to whom disclosure or notification is required would exceed two hundred fifty thousand dollars, or that the affected class of subject residents to whom disclosure or notification is required exceeds five hundred thousand persons. Substitute notice under this division shall consist of all of the following: (a) Electronic mail notice if the state agency or agency of a political subdivision has an electronic mail address for the resident to whom the disclosure must be made; (b) Conspicuous posting of the disclosure or notice on the state agency's or agency of a political subdivision's web site, if the agency maintains one; (c) Notification to major media outlets, to the extent that the cumulative total of the readership, viewing audience, or listening audience of all of the outlets so notified equals or exceeds seventy-five per cent of the population of this state. (5) Substitute notice in accordance with this division, if the state agency or agency of a political subdivision required to disclose demonstrates that the agency has ten employees or fewer and that the cost of providing the disclosures or notices to residents to whom disclosure or notification is required will exceed ten thousand dollars. Substitute notice under this division shall consist of all of the following: (a) Notification by a paid advertisement in a local newspaper that is distributed in the geographic area in which the state agency or agency of a political subdivision is located, which advertisement shall be of sufficient size that it covers at least one-quarter of a page in the newspaper and shall be published in the newspaper at least once a week for three consecutive weeks; (b) Conspicuous posting of the disclosure or notice on the state agency's or agency of a political subdivision's web site, if the agency maintains one; (c) Notification to major media outlets in the geographic area in which the state agency or agency of a political subdivision is located. (F) If a state agency or agency of a political subdivision discovers circumstances that require disclosure under this section to more than one thousand residents of this state involved in a single occurrence of a breach of the security of the system, the state agency or agency of a political subdivision shall notify, without unreasonable delay, all consumer reporting agencies that compile and maintain files on consumers on a nationwide basis of the timing, distribution, and content of the disclosure given by the state agency or agency of a political subdivision to the residents of this state. In no case shall a state agency or agency of a political subdivision that is required to make a notification required by this division delay any disclosure or notification required by division (B) or (C) of this section in order to make the notification required by this division. (G) The attorney general, pursuant to sections 1349.191 [1349.19.1] and 1349.192 [1349.19.2] of the Revised Code, may conduct an investigation and bring a civil action upon an alleged failure by a state agency or agency of a political subdivision to comply with the requirements of this section. Most Recent Effective Date: 03-30-2007

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Appendix A - Statutes Ohio Revised Code § 1347.15 – State agencies to adopt rules regulating access to confidential personal information; privacy impact assessment form; civil action for harm resulting from violation (A) As used in this section: (1) "Confidential personal information" means personal information that is not a public record for purposes of section 149.43 of the Revised Code. (2) "State agency" does not include the courts or any judicial agency, any state-assisted institution of higher education, or any local agency. (B) Each state agency shall adopt rules under Chapter 119. of the Revised Code regulating access to the confidential personal information the agency keeps, whether electronically or on paper. The rules shall include all the following: (1) Criteria for determining which employees of the state agency may access, and which supervisory employees of the state agency may authorize those employees to access, confidential personal information; (2) A list of the valid reasons, directly related to the state agency's exercise of its powers or duties, for which only employees of the state agency may access confidential personal information; (3) References to the applicable federal or state statutes or administrative rules that make the confidential personal information confidential; (4) A procedure that requires the state agency to do all of the following: (a) Provide that any upgrades to an existing computer system, or the acquisition of any new computer system, that stores, manages, or contains confidential personal information include a mechanism for recording specific access by employees of the state agency to confidential personal information; (b) Until an upgrade or new acquisition of the type described in division (B)(4)(a) of this section occurs, except as otherwise provided in division (C)(1) of this section, keep a log that records specific access by employees of the state agency to confidential personal information; (5) A procedure that requires the state agency to comply with a written request from an individual for a list of confidential personal information about the individual that the state agency keeps, unless the confidential personal information relates to an investigation about the individual based upon specific statutory authority by the state agency; (6) A procedure that requires the state agency to notify each person whose confidential personal information has been accessed for an invalid reason by employees of the state agency of that specific access; (7) A requirement that the director of the state agency designate an employee of the state agency to serve as the data privacy point of contact within the state agency to work with the chief privacy officer within the office of information technology to ensure that confidential personal information is properly protected and that the state agency complies with this section and rules adopted thereunder; (8) A requirement that the data privacy point of contact for the state agency complete a privacy impact assessment form; and

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Appendix A - Statutes (9) A requirement that a password or other authentication measure be used to access confidential personal information that is kept electronically. (C) (1) A procedure adopted pursuant to division (B)(4) of this section shall not require a state agency to record in the log it keeps under division (B)(4)(b) of this section any specific access by any employee of the agency to confidential personal information in any of the following circumstances: (a) The access occurs as a result of research performed for official agency purposes, routine office procedures, or incidental contact with the information, unless the conduct resulting in the access is specifically directed toward a specifically named individual or a group of specifially named individuals. (b) The access is to confidential personal information about an individual, and the access occurs as a result of a request by that individual for confidential personal information about that individual. (2) Each state agency shall establish a training program for all employees of the state agency described in division (B)(1) of this section so that these employees are made aware of all applicable statutes, rules, and policies governing their access to confidential personal information. The office of information technology shall develop the privacy impact assessment form and post the form on its internet web site by the first day of December each year. The form shall assist each state agency in complying with the rules it adopted under this section, in assessing the risks and effects of collecting, maintaining, and disseminating confidential personal information, and in adopting privacy protection processes designed to mitigate potential risks to privacy. (D) Each state agency shall distribute the policies included in the rules adopted under division (B) of this section to each employee of the agency described in division (B)(1) of this section and shall require that the employee acknowledge receipt of the copy of the policies. The state agency shall create a poster that describes these policies and post it in a conspicuous place in the main office of the state agency and in all locations where the state agency has branch offices. The state agency shall post the policies on the internet web site of the agency if it maintains such an internet web site. A state agency that has established a manual or handbook of its general policies and procedures shall include these policies in the manual or handbook. (E) No collective bargaining agreement entered into under Chapter 4117. of the Revised Code on or after the effective date of this section shall prohibit disciplinary action against or termination of an employee of a state agency who is found to have accessed, disclosed, or used personal confidential information in violation of a rule adopted under division (B) of this section or as otherwise prohibited by law. (F) The auditor of state shall obtain evidence that state agencies adopted the required procedures and policies in a rule under division (B) of this section, shall obtain evidence supporting whether the state agency is complying with those policies and procedures, and may include citations or recommendations relating to this section in any audit report issued under section 117.11 of the Revised Code. (G) A person who is harmed by a violation of a rule of a state agency described in division (B) of this section may bring an action in the court of claims, as described in division (F) of section 2743.02 of the Revised Code, against any person who directly and proximately caused the harm. (H) (1) No person shall knowingly access confidential personal information in violation of a rule of a state agency described in division (B) of this section. (2) No person shall knowingly use or disclose confidential personal information in a manner prohibited by law.

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Appendix A - Statutes (3) No state agency shall employ a person who has been convicted of or pleaded guilty to a violation of division (H)(1) or (2) of this section. (4) A violation of division (H)(1) or (2) of this section is a violation of a state statute for purposes of division (A) of section 124.341 [124.34.1] of the Revised Code. Most Recent Effective Date: 04-07-2009

Ohio Revised Code § 1347.99 – Penalty (A) No public official, public employee, or other person who maintains, or is employed by a person who maintains, a personal information system for a state or local agency shall purposely refuse to comply with division (E), (F), (G), or (H) of section 1347.05, section 1347.071 [1347.07.1], division (A), (B), or (C) of section 1347.08, or division (A) or (C) of section 1347.09 of the Revised Code. Whoever violates this section is guilty of a minor misdemeanor. (B) Whoever violates division (H)(1) or (2) of section 1347.15 of the Revised Code is guilty of a misdemeanor of the first degree. Most Recent Effective Date: 04-07-2009

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Appendix B* Statutory Provisions Excepting Records from the Ohio Public Records Act or Declaring Records Confidential** *This chart is based on one previously created by the Ohio Legislative Service Commission, which was current through October 23, 2008. The editors of this publication searched for amendments to the existing list and any new statutes, but do not represent this to be an exhaustive list. Independent legal research to determine whether there are additional applicable exceptions elsewhere in Ohio or Federal law that may apply to records being requested is still recommended. **The exceptions listed in this Appendix include those addressed in R.C. 149.43 itself. If an exception is contained in both R.C. 149.43 and a specific area of law, the specific area of law is cited first, with the R.C. 149.43 citation following. Some of the listed exceptions are qualified exceptions. The statutes enumerated in the first column should be examined to determine whether there are qualifications that operate to remove or qualify any confidentiality provision or other exception from the topical description in the second column.

Citation

Topic

R.C. 3.16(C)(2)

Records of a special commission formed by the Chief Justice of the Ohio Supreme Court to determine whether a public official should be suspended as a result of being charged with a felony, until the special commission issues its written report.

R.C. 9.235(C)(1)

Records of the receipt or expenditure of nonpublic money by the recipient of a contract with a governmental entity.

R.C. 9.312(A)

Additional financial information requested by a state agency or political subdivision from an apparent low bidder on a public contract.

R.C. 9.901(E)

Records of the School Employees Health Care Board.

R.C. 9.92(E) and 2981.12(F)

Records maintained relative to a citizens’ reward program.

R.C. 9.96(C)

Records of ownership, registration, transfer, and exchange of securities.

R.C. 101.30(B)

Legislative documents arising out of confidential General Assembly member/staff and legislative staff relationship.

R.C. 101.34(F)(1)

Certain files of former House and Senate ethics committees.

R.C. 102.02(B) and 102.07

Certain disclosure statements filed with the Ohio Ethics Commission.

R.C. 102.06(B), (C)(2), and (F)

Information and records concerning investigations of complaints and charges by appropriate ethics commission.

R.C. 102.07

Information and records presented to the Ohio Ethics Commission, Joint Legislative Ethics Committee (JLEC), or Board of Commissioners on Grievances and Discipline of the Supreme Court.

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Appendix B* Citation

Topic

R.C. 102.08(D)

Privately sought written opinions and associated records of JLEC.

R.C. 109.28

Any investigation of a charitable trust by the Attorney General.

R.C. 109.365

Information obtained by the Attorney General in an investigation to determine whether to defend a state officer or employee.

R.C. 109.57(D) and (H)

Information and materials furnished to the Superintendent of the Bureau of Criminal Identification and Investigation (BCII) and information obtained by a board, administrator, or other person under a criminal records check.

R.C. 109.5721(C) and (F)

Information in the Retained Applicant Fingerprint Database maintained by BCII and information regarding the arrest, conviction, or guilty plea of a person whose information is in the Database and of which the Superintendent of BCII is required to notify a participating public office.

R.C. 109.573(E) and 149.43(A)(1)(j)

Certain DNA-related records, fingerprints, photographs, and personal information BCII receives.

R.C. 109.75(L)

Ohio Peace Officer Training Commission certification examinations, either before or after completion.

R.C. 109.94(C)(1)

An application, and any supporting documentation, made with the Attorney General for an identity fraud passport.

R.C. 113.041(E)

The report of a BCII criminal records check of an individual who applies for employment with, or is employed by, the Treasurer of State’s office.

R.C. 117.14

Annual audit report of the Auditor of State’s office until specified filing.

R.C. 117.15

Annual audit report of the Treasurer of State’s office until specified submission.

R.C. 117.26

Certified copies of completed audit reports until specified filing.

R.C. 120.38(A) and (B)

Information obtained by a public defender when determining if a person is indigent and communications between a defendant and public defender.

R.C. 121.22(E)

Specified information provided regarding an applicant or members of the applicant’s immediate family to the Controlling Board, the Development Financing Advisory Council, the Industrial Technology and Enterprise Advisory Council, the Tax Credit Authority, or the Minority Development Financing Advisory Board in relation to an application for economic development assistance or assistance from the Department of Development.

R.C. 121.37(A)(2)(c) and (C)(6)

Records of meetings of the Ohio Family and Children First Cabinet Council that identify individual children and personal family information disclosed during county service coordination meetings or in service coordination plans.

R.C. 121.404(D)(2) and (3)

Information related to a registered emergency volunteer’s specific and unique responsibilities, assignments, or deployment plans, including training, preparedness, readiness, or organizational assignment, and information related to a registered volunteer’s personal information, including contact information, medical information, or information related to family members or dependents.

R.C. 121.44(A), 121.45, 121.47, and 121.48

Reports of an investigation conducted and designated confidential by the Inspector General or a deputy inspector general and confidential information acquired in the course of such an investigation.

R.C. 121.481(B)

Information that would risk impairing an investigation conducted by the Inspector General, when the Inspector General is requesting a transfer of money to the Special Investigations Fund.

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Appendix B* Citation

Topic

R.C. 121.51

The random review program of the processing of contracts associated with building and maintaining the state’s infrastructure that is conducted by the Deputy Inspector General for the Department of Transportation, and any confidential information the Deputy Inspector General accesses in the course of an investigation.

R.C. 121.52

Any confidential information the Deputy Inspector General for the Bureau of Workers’ Compensation and Industrial Commission accesses in the course of an investigation.

R.C. 122.07(B)

Records concerning tourism market research of the Department of Development (DOD)-Division of Travel and Tourism.

R.C. 122.075(D)

A report to the Director of Development from the recipient of an Alternative Fuel Transportation Grant that identifies the gallon amounts of blended gasoline and blended biodiesel the applicant sells at retail in Ohio.

R.C. 122.17(G) and 122.171(G)

Certain financial statements and information submitted to DOD or the Tax Credit Authority.

R.C. 122.36

Trade secrets or commercial or financial information received by the DOD Director, the Industrial Technology and Enterprise Advisory Council, or the Controlling Board.

R.C. 122.42(D)

Financial statements and data submitted to the DOD Director in connection with certain loan applications.

R.C. 122.561

Financial statements and data submitted to the DOD Director, the Development Financing Advisory Council, or the Controlling Board in connection with applications for mortgage payments insurance.

R.C. 122.74(C)(2)

Financial statements and other data submitted to the DOD Director in connection with specified financial assistance.

R.C. 123.152(C)

Business and personal financial information and trade secrets submitted by Encouraging Diversity, Growth, and Equity Program applicants to the Director of Administrative Services.

R.C. 125.071(C)

Proposals and related documents submitted in response to requests for competitive sealed proposals, until specified time.

R.C. 125.30(B)

Information that has been designated as confidential by any state agency on the business reply form established by the Department of Administrative Services.

R.C. 126.48

A preliminary or final report of an internal audit’s findings and recommendations produced by the Office of Internal Auditing in the Office of Budget and Management and all work papers of the internal audit, until submission of the final report.

R.C. 131.02(F)(4) and 131.022(I)

Information contained in an uncollectible claim owed to the state that is sold, conveyed, or transferred to a private entity and that is confidential under federal or state law.

R.C. 145.27(A), (B), and (D)(4), 3305.20, 3307.20(A)(1), (B), (C), and (E)(4), and 3309.22(A), (B), and (D)(4)

Certain information and records of the Public Employees Retirement Board, State Teachers Retirement Board, School Employees Retirement Board, or an entity providing an alternative retirement plan.

R.C. 149.432(B)

Library records and patron information.

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Appendix B* Citation

Topic

R.C. 149.433(B) and (C)

Public office’s security records and infrastructure records: “security record” being (1) any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage, or (2) any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or respond to acts of terrorism; and “infrastructure record” being any record that discloses the configuration of a public office’s critical systems, including communication, computer, electrical, mechanical, ventilation, water, and plumbing systems, security codes, or the infrastructure or structural configuration of the building in which a public office is located, but not including a simple floor plan that discloses only the spatial relationship of components of a public office or the building in which a public office is located.

R.C. 149.45

If a public office makes a document available on the Internet, an individual’s Social Security Number and any personal information that the individual has asked to have redacted from that document.

R.C. 166.05(E)

Financial statements and other data submitted to the DOD Director, the Development Financing Advisory Council, or the Controlling Board by a private sector person in connection with specified financial assistance, and information taken from same.

R.C. 166.14(D)

Financial statements and other data submitted to the DOD Director, the Development Financing Advisory Council, or the Controlling Board by a private sector person in connection with the Innovation Financial Assistance Program, and information taken from same.

R.C. 166.19(D)

Financial statements and other data submitted to the DOD Director, the Development Financing Advisory Council, or the Controlling Board by a private sector person in connection with the Research and Development Financial Assistance Program, and information taken from same.

R.C. 169.03(F)(4)

Audited records of holders of unclaimed funds.

R.C. 173.061

Records identifying recipients of Golden Buckeye Cards, subject to Director of Aging discretion but never a recipient’s medical history.

R.C. 173.22

Certain investigative and other files and information contained in the State Long-Term Care Ombudsperson Program’s or regional program’s office.

R.C. 173.27(E)

The report of a criminal records check of a person who is under final consideration for employment with the Office of the State Long-Term Care Ombudsperson Program in a position that involves providing ombudsperson services to long-term care residents and recipients.

R.C. 173.393(B)

A part of a record of an evaluation of a community-based long-term care agency, if the release of the record would violate a federal or state statute, regulation, or rule.

R.C. 173.394(E)

The report of a criminal records check of a person who is under final consideration for employment with a community-based long-term care agency in a position that involves providing direct care to an individual.

R.C. 175.12(B) and 149.43(A)(1)(y)

Financial statements and data submitted for any purpose to the Ohio Housing Finance Agency or the Controlling Board in connection with applying for, receiving, or accounting for financial assistance the Agency provides and information that identifies any individual who benefits directly or indirectly from financial assistance the Agency provides.

R.C. 177.02(F)

Information concerning the filing of a complaint and the investigation of organized criminal activity, for a specified time.

R.C. 177.03(D)(4) and (5)

Task force information concerning the investigation and potential prosecution of organized criminal activity.

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Appendix B* Citation

Topic

R.C. 307.627, 307.629, 3701.045(A)(4), and 149.43(A)(1)(s)

Certain information, documents, and reports presented to the child fatality review board; statements made by board members at meetings; work product of a child fatality review board; and child fatality review data submitted by board to department of health or national child fatality review database.

R.C. 307.862(C)

Proposals and any documents or other records related to a subsequent negotiation for a final contract by a county contracting authority that uses competitive sealed proposals, until after the award of the contract.

R.C. 307.987

Information received by a private or government entity pursuant to a contract to provide workforce development activities or family service duties, a plan of cooperation, a regional plan of cooperation, or a transportation work plan that was confidential in the hands of the entity that provided the information.

R.C. 313.091

Medical or psychiatric record provided to a coroner.

R.C. 313.10(A)(2), (D), and (E)

The following records in a coroner’s office, except in specified circumstances: preliminary autopsy and investigative notes and findings made by the coroner or by anyone acting under the coroner’s direction or supervision, photographs of a decedent made by the coroner or by anyone acting under the coroner’s direction or supervision, suicide notes, and medical and psychiatric records provided to the coroner.

R.C. 319.34

County auditor’s classified tax list and county treasurer’s classified tax duplicate of taxable property.

R.C. 339.81

Information, data, and reports of a tuberculosis case furnished to, or procured by, a county or district tuberculosis control unit or the Department of Health.

R.C. 340.15(B)

Certain information obtained or maintained by a public children services agency or alcohol or drug addiction program.

R.C. 351.24

Records or proprietary information relating to lessees or other users obtained by a convention facilities authority or other persons acting under the Convention Facilities Authority Law.

R.C. 718.11

Records of transactions of a municipal corporation board of appeals relative to income taxation obligations.

R.C. 718.13

Information from tax returns, investigations, hearings, or verifications concerning municipal corporation income taxes.

R.C. 742.41(A)(2), (B), (C), and (E)(4)

Certain personal information in records of the Board of Trustees of the Ohio Police and Fire Pension Fund.

R.C. 901.13(E)

Any business plan submitted to the Ethanol Incentive Board as part of an ethanol production plant construction and operation application.

R.C. 901.27

Information acquired by a Department of Agriculture agent in an investigation.

R.C. 905.57

Information in an annual tonnage report (agricultural liming material sold or distributed) and certain other information maintained by the Department of Agriculture.

R.C. 917.17

Information furnished to or procured by the Director of Agriculture under the Dairies Law.

R.C. 921.02(E)

Trade secret or confidential business information on a pesticide registration application.

R.C. 921.04(B)

Information on a pesticide registration or permit application designated as a trade secret or confidential commercial or financial information.

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Appendix B* Citation

Topic

R.C. 924.05(B)

Information contained in the individual reports filed with the Director of Agriculture by producers, handlers, or processors of any Ohio agricultural commodity for which a marketing program is proposed.

R.C. 926.06(D)

Financial information in the Department of Agriculture’s records identifying commodity handler license applicants.

R.C. 1121.18(A)

Information related to an examination of a bank or other financial institution by the Superintendent of Financial Institutions.

R.C. 1121.25(A) and (E)

Commercial or financial information in an application or notice declared confidential by the Superintendent of Financial Institutions.

R.C. 1121.43(B)

Any written agreement or other writing for which a violation may be enforced by the Superintendent of Financial Institutions, if the Superintendent determines that publishing it and making it available to the public would be contrary to the public interest; a final order issued by the Superintendent of Financial Institutions, if the Superintendent determines that publishing it and making it available to the public would seriously threaten the safety and soundness of a bank or trust company, until a reasonable time.

R.C. 1121.45(C)

Certain records and information presented at a meeting with regulated persons called by the Superintendent of Financial Institutions.

R.C. 1155.16(A)

Reports or information regarding savings and loan associations obtained by the Superintendent of Financial Institutions or other persons.

R.C. 1163.20(A)

Reports or information regarding savings banks obtained by the Superintendent of Financial Institutions or other persons.

R.C. 1306.23

Records that would jeopardize the state’s use or security of computer or telecommunications devices or services associated with electronic signatures, records, or transactions.

R.C. 1315.03(C) and 1315.10(C)

Information in or related to an application for a money transmitter license or an application to acquire control of a money transmitter license to which the Superintendent of Financial Institutions decides to grant confidential treatment.

R.C. 1315.122(A)

Information leading to, arising from, or obtained in the course of the examination of a licensee or other person conducted under the money transmitter laws.

R.C. 1315.53(H)

A report, record, information, analysis, or request obtained by the Attorney General or an agency pursuant to the Currency and Foreign Transactions Reporting Act, 84 Stat. 1118 (1970).

R.C. 1315.54(C)

A record, other document, or information obtained by the Attorney General pursuant to an investigation of a money transmitter.

R.C. 1321.09(A)

Reports filed with the Superintendent of Financial Institutions by small loans licensees.

R.C. 1321.422(B)

Individual reports required to be filed with the Superintendent of Financial Institutions by licensees under the short-term loan laws regarding the business and operation for the preceding calendar year.

R.C. 1321.46(C)(4)

The database of short-term loan borrowers that the Superintendent of Financial Institutions may develop to permit licensees to determine whether a borrower is eligible for a loan.

R.C. 1321.48(B), (C), (D), and (F)

Examination and investigation information, and any information leading to or arising from an examination or an investigation that is maintained by the Superintendent of Financial Institutions or released to the Attorney General under the short-term loan laws.

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Appendix B* Citation

Topic

R.C. 1321.55(B)(2)

Annual individual reports filed by second mortgage security loans registrants with the Superintendent of Financial Institutions

R.C. 1321.76(C)

Information obtained by the Superintendent of Financial Institutions regarding insurance premium finance company licensees.

R.C. 1322.061(A), (B), (1349.43(E), and 1349.44(B)

Examination, investigation, and certain application information (i.e. SSN’s, employer identification numbers, particular banking and financial information, etc.) obtained by the Superintendent of Financial Institutions regarding mortgage broker registrants.

R.C. 1331.16(L)

Certain records and information provided to the Attorney General pursuant to an investigative demand under the Monopoly Law.

R.C. 1332.25(G)

Information in an application made to the Director of Commerce for a video service authorization that the applicant identifies, and the Director affirms, as trade secret information.

R.C. 1332.30(E)(2)(b)

Quarterly reports to a municipal corporation or township identifying the total number of video service subscribers served within the municipal corporation or the unincorporated area of the township.

R.C. 1345.05(A)(7)

Identity of suppliers investigated or facts developed in investigations of Consumer Sales Practices Act violations.

R.C. 1346.03

Certain tax information about a tobacco product manufacturer acquired by the Department of Taxation and provided to the Attorney General.

R.C. 1501.012(B), 1501.091, and 1501.10

Questionnaires and financial statements submitted to the Director of Natural Resources by a public service facility construction contract bidder, by a bidder for a contract for the operation of public service facilities, or by a bidder for a lease of public service facilities in a state park.

R.C. 1505.03

Geological records accepted and retained on a confidential basis by the Chief of the Division of Geological Survey of the Department of Natural Resources (DNR).

R.C. 1506.32(J)

Revelation by the Director of Natural Resources of abandoned property’s location during certain time periods.

R.C. 1513.07(B)(2), (C)(12), and (D)

Information pertaining to the analysis of the chemical and physical properties of coal and certain other information by the Chief of DNR’s Division of Mineral Resources Management.

R.C. 1513.072(B)

Trade secrets or certain privileged commercial or financial information submitted to the Chief of DNR’s Division of Mineral Resources Management (coal exploration operations).

R.C. 1514.02(A)(9)

Information relating to test boring results submitted to the Chief of DNR’s Division of Mineral Resources Management.

R.C. 1517.02(D)

Information regarding sensitive site locations of endangered plant species and of unique natural features that are included in the Ohio Natural Heritage Database, if the Chief of Natural Areas and Preserves determines that the release of the information could be detrimental to the conservation of a species or unique natural feature.

R.C. 1531.06(M)

Information regarding sensitive site locations of endangered wildlife species and of features that are included in the Wildlife Diversity Database, if the Chief of the Division of Wildlife determines that the release of the information could be detrimental to the conservation of a species or feature.

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Appendix B* Citation

Topic

R.C. 1547.80(C)

A copy of the registration, security plan, and emergency locator map provided by certain port facilities to the Department of Public Safety, the Department of Natural Resources, the sheriff of the county in which the port is located, and the chief of police of each municipal corporation in which the port is located.

R.C. 1551.11(B)

Trade secrets or other proprietary information submitted to the Director of Development regarding utilization of present, new, or alternative energy sources, the conservation of energy, energy resource development facilities, the attraction of funding in emerging and established national or state priority areas, or the enhancement of the state’s economic development.

R.C. 1551.35(C) and 1555.17

Trade secrets or proprietary information in materials or data submitted to the Ohio Air Quality Development Authority or the Director of the Ohio Coal Development Office in connection with agreements for financial assistance relative to coal research and development projects.

R.C. 1707.12(B) and (C)

Investigation information, confidential law enforcement investigatory records, trial preparation records, and certain exempt transaction information of the Department of Commerce’s Division of Securities.

R.C. 1710.02(C)

Records of organizations contracting with a special improvement district.

R.C. 1716.05(B)(5)(a)

Attorney General cannot disclose, as reflected in a fund-raising counsel’s solicitation campaign records, a contributor’s name and address and the date and amount of each contribution to the fund-raising counsel.

R.C. 1716.07(G)(1)(a)

Attorney General cannot disclose, as reflected in a professional solicitor’s solicitation campaign records, a contributor’s name, address, and telephone number and the date and amount of each contribution to the professional solicitor.

R.C. 1724.11(A)(1) and (2)

Certain financial, proprietary, and other information submitted by an entity to a community improvement corporation acting as a political subdivision’s agent.

R.C. 1733.32(H)

Information obtained by the Superintendent of Financial Institutions under an examination or independent audit of a credit union.

R.C. 1733.327(A)

Certain conferences and administrative proceedings, and associated documents, regarding a credit union.

R.C. 1739.16(E)

Written agreement between a multiple employer welfare arrangement operating a group selfinsurance program and a third party administrator.

R.C. 1751.19(C)

Any document or information pertaining to a complaint or response that contains a medical record, that is provided to the Superintendent of Insurance for inspection by a health insuring corporation.

R.C. 1751.52(B)

Data or information concerning an enrollee’s or applicant’s diagnosis, treatment, or health obtained by a health insuring corporation from specified sources.

R.C. 1751.80(A)

Health insuring corporation’s clinical review rationale when made available to government agency.

R.C. 1753.38(A) and (C)(1) and 3903.88

The risk-based capital plans, reports, information, and orders maintained by the Superintendent of Insurance.

R.C. 1761.08(A)(3)

Certain financial statements and analyses furnished to a credit union share guaranty corporation.

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Appendix B* Citation

Topic

R.C. 1761.21(A)

Conferences and administrative proceedings, and associated documents, regarding a credit union share guaranty corporation.

R.C. 2111.021

A file, record, petition, motion, account, or paper pertaining to a conservatorship upon probate court order.

R.C. 2151.14(B)

Reports and records of a juvenile court’s probation department.

R.C. 2151.141(B)(2)

Under specified circumstances, certain records of a law enforcement agency or prosecuting attorney regarding abused, neglected, or dependent child complaints (protective orders).

R.C. 2151.142(B) and (C)

Under specified circumstances, residential address of an officer or employee, or person related by blood or marriage to an officer or employee, of a public children services agency or private child placing agency (the agency, the juvenile court, and any law enforcement agency cannot disclose).

R.C. 2151.313(C)

Originals and copies of fingerprints and photographs of a child and the child’s related records of arrest or custody.

R.C. 2151.356 and 2151.357

Juvenile court records that have been sealed by court order.

R.C. 2151.421(H)(1) and (K)(2)

Reports by specified individuals regarding their knowledge or suspicion of a suffered, or of a threat of a, physical or mental wound, injury, disability, or condition reasonably indicating abuse or neglect of a minor or of a mentally retarded, developmentally disabled, or physically impaired child under age 21.

R.C. 2151.422(D)

Information in the possession of a homeless shelter that identifies the last known residential address and county of residence of a homeless person.

R.C. 2151.423

Information discovered during an investigation of the neglect or abuse of a child that is disclosed to any federal, state, or local government entity that needs the information to carry out its responsibilities to protect children from abuse or neglect.

R.C. 2151.85(F), 2505.073(B), 2919.121(C)(7), and 149.43(A)(1)(c)

The complaint and all other papers and records that pertain to an action brought by a pregnant, unmarried, and unemancipated minor woman who wishes to have an abortion without the notification of her parents, guardian, or custodian and all papers and records that pertain to an appeal of such an action.

R.C. 2151.86(E)

BCII criminal records check information relative to a person under final consideration for employment as a child caregiver in out-of-home care, a prospective adoptive parent, or a prospective recipient of a foster home certificate from the Department of Job and Family Services (DJFS).

R.C. 2152.19(D)(3), 2930.13(D), and 2947.051(C)

A victim impact statement associated with a felony that was committed by an adjudicated delinquent child or adult offender and that involved a specified “physical harm” aspect.

R.C. 2305.24

Information, data, reports, or records furnished to a quality assurance or utilization committee of a hospital, long-term care facility, not-for-profit health care corporation, state or local medical society, or to a quality assurance committee of the bureau of workers’ compensation or the industrial commission..

R.C. 2305.252

Proceedings and records of a peer review committee of a health care entity.

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Appendix B* Citation

Topic

R.C. 2305.253

An incident report or risk management report and the contents of an incident report or risk management report, in a tort action.

R.C. 2307.46(A)

Upon court order in a civil action, except for limited purposes, the identity of a woman upon whom an abortion was allegedly performed, induced, or attempted.

R.C. 2317.02, 2317.021, and 4732.19

Certain privileged communications between an attorney, physician, dentist, psychologist, school psychologist, school guidance counselor, professional clinical counselor, professional counselor, social worker, independent social worker, social work assistant, mediator, communications assistant, member of the clergy, spouse, or chiropractor and a client, patient, person being religiously counseled, other spouse, or parent.

R.C. 2710.03(A), 2710.07, and 149.43(A)(1)(i)

Mediation communications.

R.C. 2743.62(A)(2)(a)

A record or report that the Court of Claims or Attorney General obtains under the Crime Victims Reparations Awards Law that is confidential or exempt from public disclosure when in its creator’s possession.

R.C. 2921.22(G)

Information about the commission of a felony that would otherwise have to be reported, under specified circumstances, such as an attorney-client relationship, doctor-patient relationship, etc.

R.C. 2921.24(A)

Home address of any peace officer who is a witness or arresting officer in a pending criminal case (law enforcement agency, court, or court clerk’s office cannot disclose in absence of court order).

R.C. 2921.25

The home address of a peace officer, parole officer, prosecuting attorney, assistant prosecuting attorney, correctional employee, or youth services employee, during examination in a court case or mayor’s court case.

R.C. 2923.129(B)(1) and (D)

Sheriff records concerning the issuance, renewal, suspension, or revocation of a concealed handgun license or temporary emergency concealed handgun license, subject to a specified journalist exception and information regarding concealed handgun licenses a sheriff makes available through the Law Enforcement Automated Data System.

R.C. 2925.42(D)(4)

Until property is seized, the recording and transcript of certain proceedings in relation to “felony drug abuse offense” forfeitures.

R.C. 2930.07

The victim’s or victim’s representative’s address, place of employment, or similar identifying fact, if the prosecutor in a case determines that there are reasonable grounds for the victim in a case to be apprehensive regarding acts or threats of violence or intimidation by the defendant or alleged juvenile offender and the court issues an order that the information should be confidential.

R.C. 2930.13(D), 2947.06, 2951.03, and 2953.08(F)(1)

Certain or all information in presentence investigation reports (contents and summaries) and those reports, psychiatric reports, and other investigative reports in an appellate court record to be reviewed.

R.C. 2930.14(A)

Written statement before sentencing of a victim, defendant, or alleged juvenile offender.

R.C. 2933.231(E)

Until search warrant is returned, the recording and transcript of proceeding concerning a request for a waiver of the statutory precondition for nonconsensual entry.

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Appendix B* Citation

Topic

R.C. 2933.63

The contents, or evidence derived from the contents, of a wire, oral, or electronic communication that was unlawfully intercepted or improperly intercepted pursuant to an interception warrant or an oral order for an interception or that is of a privileged character and a special need for its interception is not shown.

R.C. 2939.18

Information that an indictment has been found against a person not in custody or under bail, before the indictment is filed and the case docketed.

R.C. 2950.08

Certain statements, information, photographs, fingerprints, and other material required under the Sex Offender Registration Law.

R.C. 2950.10(A)(4)

Information a sheriff obtains regarding the victim of a sexually oriented offense or a child-victim oriented offense who wishes to be notified of the offender’s or delinquent child’s registration status.

R.C. 2950.13(A)(1) and (13)

BCII’s Internet database of the State Registry of Sex Offenders and Child-Victim Offenders and information obtained by local law enforcement representatives through use of the database.

R.C. 2953.32(C) and (D) and 2953.321

Official records and related investigatory work product in a first offender’s case sealed by court order.

R.C. 2953.52(B), 2953.53(D), and 2953.54

Official records and related investigatory work product pertaining to a case sealed by court order (person found not guilty; complaint, indictment, or information against person dismissed; or no bill entered by grand jury) whether in the possession of court or another public office or agency.

R.C. 2981.03(B)(4)

Until property is seized under the Forfeiture Law, the recording and transcript of certain hearings or proceedings in relation to the forfeiture of that property.

R.C. 3101.05(A) and 3101.051

In connection with marriage license applications, under specified circumstances, a record containing applicant Social Security numbers.

R.C. 3107.17(B)(1) and (D)

Certain placement or adoption records and information; forms concerning the social or medical histories of the biological parents of an adopted person (only specified individuals may access).

R.C. 3107.42(A) and 149.43(A)(1)(f)

The following records regarding persons available or potentially available for adoption prior to September 18, 1996: the file of releases; the indices to the file of releases; releases and withdrawals of releases in the file of releases, and information contained in them; and probate court and agency records pertaining to adoption proceedings.

R.C. 3107.52(A) and 149.43(A)(1)(f)

The Department of Health’s records pertaining to adoption proceedings regarding a person available or potentially available for adoption on or after September 18, 1996.

R.C. 3111.94(A)

A physician’s files concerning non-spousal artificial inseminations.

R.C. 3113.31(E)(8)(b)

The address of a person who petitions for a civil protection order or a consent agreement, if the person requests that the person’s address be confidential.

R.C. 3113.36

Any information that would identify individuals served by a domestic violence shelter.

R.C. 3113.40

Information in the possession of a domestic violence shelter that identifies the residential address and county of residence information for a person admitted to the shelter.

R.C. 3121.76

Information obtained from a financial institution pursuant to an account information access agreement.

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Appendix B* Citation

Topic

R.C. 3121.894 and 149.43(A)(1)(o)

Records maintained by the Department of Job and Family Services (DJFS) to locate individuals for the purposes of establishing paternity, or establishing, modifying, and enforcing support orders being administered by child support enforcement agencies, or to detect fraud in any DJFS administered program.

R.C. 3121.899(A)

New hire reports filed by employers with DJFS.

R.C. 3301.0711(I) and (N) and 3319.151(A)

Individual assessment scores and proposed assessment questions, anchor questions, questions that are needed for reuse on a future assessment, and assessment administered in the fall or summer.

R.C. 3301.0714(I)

Data collected or maintained in the Statewide Education Management Information System that identifies a pupil.

R.C. 3301.12(A)(3)

Individual student data used in studies and research projects for the improvement of public school education that are conducted under the authority of the Superintendent of Public Instruction.

R.C. 3301.32(D), 3301.541(D), 3301.88(E), and 3319.39(D)

BCII criminal records check information relative to a Head Start employment applicant, a preschool employment applicant, an applicant to participate in a program established under the Classroom Reading Improvement Grants Program in a specified manner, or a school district, educational service center, or chartered nonpublic school employment applicant.

R.C. 3302.021(A)(2)

Individual student test scores and reports used in the Value-Added Progress Dimension.

R.C. 3302.10(G)

Financial disclosure statements filed with the Ohio Ethics Commission by members of an academic distress commission.

R.C. 3304.21

Lists of names or information in the Rehabilitation Services Commission’s records pertaining to applicants for or recipients of Commission services.

R.C. 3310.11(D)

Any document relative to the Educational Choice Scholarship Pilot Program that the Department of Education holds in its files and that contains both a student’s name or other personally identifiable information and the student’s data verification code.

R.C. 3313.173

Certain identifying information provided pursuant to a school district or educational service center reward offer relative to crimes committed against school employees or pupils or on school property.

R.C. 3313.533(H)(6)

Under certain circumstances, confidential or proprietary information or trade secrets contained in alternative school proposals submitted to a school district board of education.

R.C. 3313.536(C)

Copies of the safety plan and building blueprint adopted by a board of education or governing authority of a chartered nonpublic school, and copies of a school building floor plan filed with the Attorney General.

R.C. 3313.71

Certain records regarding the examination of pupils, teachers, or other school employees for tuberculosis.

R.C. 3313.714(C)

Information received by a board of education in relation to a Healthcheck program.

R.C. 3319.088(E)

Personal information concerning a pupil in the school district that was obtained or obtainable by an educational assistant.

Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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Appendix B* Citation

Topic

R.C. 3319.292

Any questions the State Board of Education and the Department of Education ask an applicant for issuance or renewal of a teaching license regarding a record of a conviction, plea of guilty, bail forfeiture, or other disposition of a criminal offense committed or alleged to have been committed by the applicant that has been sealed or expunged and the responses of the applicant to such questions.

R.C. 3319.311(A) and (B)

Information obtained during a State Board of Education or Superintendent of Public Instruction investigation that may be the basis for suspending, revoking, or limiting an educator’s license.

R.C. 3319.321(A), (B), and (C)

Personally identifiable information, and in some cases directory information, concerning students attending a public school, and other public school records.

R.C. 3323.05(F)(6) and (7) and (G)(2)

Discussions that occur during a mediation process or resolution session between parents of children with disabilities and a school district.

R.C. 3323.06(A)

Personally identifiable data, information, and records collected under a State Board of Education plan concerning the education of handicapped children.

R.C. 3334.11(J)

Certain records of the Ohio Tuition Trust Authority concerning tuition credits or college savings bonds.

R.C. 3334.19(H)

Records of the Ohio Tuition Trust Authority indicating the identity of purchasers, contributors, and beneficiaries under the Variable College Savings Program and amounts contributed to, earned by, or distributed from Program accounts.

R.C. 3503.10(E)(4)

The identity of the agency through which a person registered to vote, and information relating to a declination to register to vote at a designated agency.

R.C. 3503.11

Information relating to an applicant’s decision to decline to register to vote or update the applicant’s voter registration at the office of the Registrar of Motor Vehicles or deputy registrar.

R.C. 3505.181(B)(5)(b)

Information identifying whether a specific provisional ballot was counted, and, if the ballot was not counted, the reason the ballot was not counted.

R.C. 3506.18(D)

Any information on a voter verified paper audit trail that identifies the particular direct recording electronic voting machine that produced it.

R.C. 3509.06(E)

The count or any portion of the count of absent voter’s ballots prior to the close of the polls.

R.C. 3599.161(B)

Records relating to the declination of a person to register to vote and the identity of the voter registration agency through which a particular person registered to vote maintained by directors and deputy directors of elections and board of elections employees.

R.C. 3701.028(A)

Specified records of the program for medically handicapped children and of programs funded by the federal Maternal and Child Health Block Grant.

R.C. 3701.041(B)

Records of a person’s identity, diagnosis, prognosis, or treatment under the Employee Assistance Program.

R.C. 3701.044 and 3721.31(F)

Test materials, examinations, or evaluation tools used in any Department of Health examination or evaluation, specifically including competency evaluation programs and training and competency evaluation programs relative to long-term care facilities.

R.C. 3701.072(B) and (D) and 149.43(A)(1)(x)

Information reported to the Director of Health by a trauma center that describes the trauma center’s preparedness and capacity to respond to disasters, mass casualties, and bioterrorism, and any evaluation the Director of Health conducts to verify that preparedness and capacity.

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Appendix B* Citation

Topic

R.C. 3701.14(B) and (D)

Information obtained during an ongoing investigation or inquiry by the Director of Health (cause of disease or illness related) that is not in summary, statistical, or aggregate form and that identifies a person.

R.C. 3701.17(A) and (B)

Information that is reported to or obtained by the Director of Health, the Department of Health, or a board of health of a city or general health district that describes an individual’s past, present, or future physical or mental health status or condition, receipt of treatment or care, or purchase of health products, and that reveals the identity of the individual or could be used to reveal the identity of the individual.

R.C. 3701.20(E)

Information of a poison prevention and treatment center about individuals to whom treatment or services are provided.

R.C. 3701.24(D), 3701.241(A), 3701.243(A), and 3701.247(A) and (C)

Information concerning AIDS cases, AIDS-related conditions, or confirmed positive HIV tests reported to the Department of Health that identifies an individual; information obtained or maintained under the associated partner notification system; certain information concerning an individual’s HIV test and the identity of an individual diagnosed as having AIDS or an AIDSrelated condition; and the identity of an individual against whom a probate court action has been brought to compel HIV testing.

R.C. 3701.248(B)(3) and (D)

Healthcare facilities and coroners must keep confidential certain information concerning possible exposure of emergency medical services workers and funeral services workers to a contagious or infectious disease.

R.C. 3701.263(A) and (B)

Certain information concerning a case of malignant disease furnished to a cancer registry or the Department of Health and information concerning individual cancer patients obtained by the Department for the Ohio Cancer Incidence Surveillance System.

R.C. 3701.509(E)

Patient-identifying information contained in newborn hearing screening reports submitted by hospitals and freestanding birthing centers to the Department of Health.

R.C. 3701.62

Any document regarding the Help Me Grow Program and a child’s eligibility for special education services that the Director of Health holds in the Director’s files that contains both a child’s name or other personally identifiable information and the child’s data verification code.

R.C. 3701.79(C) and (H)

Individual abortion reports and postabortion complication reports completed by a physician and submitted to the Department of Health.

R.C. 3701.881(E), 3712.09(E), 3721.121(E), and 3722.151(E)

BCII criminal records check information relative to a home health agency, a hospice care program, an adult day-care program, or an adult care facility employment applicant.

R.C. 3701.91

Information provided to the Department of Health through the toll-free patient safety telephone line.

R.C. 3702.18

Quality-of-care data, or records copied in an investigation of a violation of the Department of Health’s rules, that identify specific patients; or safety reports concerning specific adverse events, bodily injuries, or complaints that are reported to the Department.

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Appendix B* Citation

Topic

R.C. 3702.531

Identifying information about any patient in certain Director of Health investigations under the Certificates of Need Law.

R.C. 3704.08(A) and (B), 3704.18(A)(7), and 3706.19(C)(6)

Trade secrets obtained by the Director of Environmental Protection under the Air Pollution Control Law; records, reports, and information obtained by public officials under the Small Business Stationary Source Technical and Environmental Compliance Assistance Program; communications and information from small businesses seeking assistance under the Program; and information on problems and grievances assistance given to a small business by the Program’s ombudsman.

R.C. 3705.09(G)

An original birth record and documentary evidence supporting a new registration of birth following fatherhood presumption, finding, declaration, or acknowledgement.

R.C. 3705.11

Under certain circumstances, a foundling report for a child of unknown parentage.

R.C. 3705.12, 3705.29(D), and 149.43(A)(1)(d)

Original birth records, adoption files, and certain other documents after a new record has been issued or obtained after an adoption.

R.C. 3705.15(D)(1)

Original birth records and index references after a new record is issued due to a correction of the original birth record.

R.C. 3705.23(A)(4)(b)

Information contained in the “Information for Medical and Health Use Only” section of a birth record (Department of Health’s Office of Vital Statistics and local registrars).

R.C. 3705.32(A)

Records received and information assembled by the Birth Defects Information System.

R.C. 3706.20

Information or records relating to secret processes or methods of manufacture or production that are obtained by the Ohio Air Quality Development Authority.

R.C. 3713.09(C) and (D)

Records of any importer, manufacturer, or wholesaler of stuffed toys or articles of bedding, mobile home and recreational vehicle dealer, conversion van dealer, secondhand dealer, or auction house that are audited by the Superintendent of Industrial Compliance to determine compliance with the bedding and stuffed toy laws are confidential, except when required by the Public Records Law or as the Superintendent finds necessary for the proper administration of those laws.

R.C. 3717.28 and 3717.48

Trade secrets and other information required to be furnished to or procured by a licensor of retail food establishments or of food service operations.

R.C. 3719.13

Prescriptions, orders, and records required by the Controlled Substances Law.

R.C. 3721.026(B)

Technical assistance reports of the Department of Health’s technical assistance unit for nursing facilities.

R.C. 3721.031

Information that identifies a patient or resident of a nursing home, a residential care facility, a home for the aging, or an Ohio Veterans’ Home, or an individual who files a complaint or provides confidential information about a home or facility.

R.C. 3721.13(A)(10), 3722.12(B)(19)

Personal and/or medical records of the residents or patients of nursing homes, residential care facilities, homes for the aging, an Ohio Veterans’ Home, adult care facilities, community alternative homes, and certain other homes.

R.C. 3721.25(A), (B), and (C)

Certain records and information concerning reports of long-term care facility or residential care facility resident abuse or neglect or misappropriation of resident property.

R.C. 3722.17(A)

Certain identifying information relative to reports alleging a violation of the Adult Care Facility Law (Director of Health).

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Appendix B* Citation

Topic

R.C. 3723.09(H) and 3723.10

Information that the Public Health Council requires radon testers and mitigation specialists to report to the Director of Health, and the name of a complainant to the Director concerning a radon tester, mitigation specialist or contractor, or operator of a radon laboratory or a training course.

R.C. 3723.12(A)

Radon-related information collected by the Department of Health concerning a private residence or the real property upon which it is located, under certain circumstances.

R.C. 3727.081(F)

Information reported to or collected by the Department of Health regarding an application for a hospital to be designated a level II pediatric trauma center that identifies or would tend to identify specific patients.

R.C. 3727.101(E)(2)

Copies of the American College of Surgeons’ report of a consultative or reverification visit and the plan and timetable for obtaining verification or reverification that are provided to the Director of Health by an adult or pediatric trauma center operating under provisional status.

R.C. 3727.36

Names and Social Security Numbers of patients, physicians, and dentists not to be included in data required to be reported by hospitals to the Department of Health.

R.C. 3733.471(D)

Information that the Migrant Agricultural Ombudsman’s Office receives as a result of reports of certain violations of law filed with it.

R.C. 3734.42(A)(3) and 3734.43(L) and (N)

Certain documents associated with an Attorney General investigative report or investigative demand under the Solid and Hazardous Wastes Law.

R.C. 3737.16(E)

Information the Fire Marshal and certain other officials receive from an insurance company that has investigated or is investigating a fire loss of real or personal property, until a specified time.

R.C. 3737.23

Testimony given in an investigation into a fire is not a matter of public record in the Fire Marshal’s record of Ohio fires determined by investigations.

R.C. 3742.03(E)(3)

Information that is a medical record and that is required to be reported under Public Health Council lead abatement project and lead poisoning record-keeping and reporting rules.

R.C. 3742.15

The name of a person who files a complaint with the Director of Health concerning a lead inspector, lead abatement contractor, lead risk assessor, lead abatement project designer, lead abatement worker, clearance technician, clinical laboratory, environmental lead analytical laboratory, or training course.

R.C. 3745.71

The contents of an environmental audit report, and the contents of communications between the owner or operator of a facility or property who conducts an environmental audit and employees or contractors of the owner or operator, or among employees or contractors of the owner or operator, that are necessary to the audit and are made in good faith as part of the audit after the employee or contractor is notified that the communication is part of the audit (applies to audits initiated after March 13, 1997, and completed prior to January 1, 2009).

R.C. 3750.02

Certain information obtained by the Emergency Response Commission and local emergency planning committees, such as trade secrets, confidential business information, and the name and address of a person who seeks access to information in the Commission’s files.

R.C. 3750.09 and 3751.04

For purposes of the Emergency Planning Law and the Hazardous Substances Law, trade secrets or confidential business information obtained under the Emergency Planning and Community Right-To-Know Act of 1986.

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Appendix B* Citation

Topic

R.C. 3750.10(B)(5)

Under certain circumstances, the storage location of a hazardous chemical at a facility provided on an emergency and hazardous chemical inventory form to the Emergency Response Commission or a local emergency planning committee.

R.C. 3750.22(B)(1)

Any vulnerability assessment or other security-sensitive information a public office receives from an owner or operator of a facility where chemicals are produced, or the owner or operator of any other facility or business of any type.

R.C. 3770.02(B)

State Lottery Commission meeting records, unless prior notification of the Director and a showing of good cause.

R.C. 3770.07(A)(1) and (4)

The name, address, and Social Security Number of each beneficial owner of a trust that is making a claim for a lottery prize award, unless the beneficial owner consents to the inspection or copying in writing.

R.C. 3793.07(C)(8) and (E)

Investigatory records of the Department of Alcohol and Drug Addiction Services (DADAS) regarding the certification or credentialing of chemical dependency counselors and alcohol and other drug prevention specialists for the purpose of qualifying their services for reimbursement under the Medicare or Medicaid program.

R.C. 3793.12(C)

Communications by a person seeking aid in good faith for alcoholism or drug dependence and information revealing the person’s identity not to be collected or disclosed by DADAS.

R.C. 3793.13(A)

Records or information pertaining to the identity, diagnosis, or treatment of any DADASlicensed or certified drug treatment program patient.

R.C. 3793.14

Health and medical records of a person treated for alcoholism or drug addiction.

R.C. 3793.15(D)

A record or information DADAS obtains or maintains for the Addicted Pregnant Women Program that could identify a specific woman or her child.

R.C. 3901.045

Documents and information the Superintendent of Insurance receives from local, state, federal, and international regulatory and law enforcement agencies, from local, state, and federal prosecutors, from the National Association of Insurance Commissioners and its affiliates and subsidiaries, from the Chief Deputy Rehabilitator, from the Chief Deputy Liquidator, from other deputy rehabilitators and liquidators, and from any other person employed by, or acting on behalf of, the Superintendent, if the documents or information were confidential or privileged when held by the provider.

R.C. 3901.36

Information and documents obtained by the Superintendent of Insurance in an examination or investigation of an insurer’s financial condition or legality of conduct.

R.C. 3901.44(B) and (D)

Documents, reports, and evidence in the possession of the Superintendent of Insurance pertaining to an insurance fraud investigation.

R.C. 3901.48(A), (B), and (C)

Certain records concerning an audit of an insurance company or health insuring company; and the work papers of the Superintendent of Insurance resulting from specified insurer examinations, financial analyses, and performance regulation examinations.

R.C. 3901.70(A)

Reports obtained by or disclosed to Superintendent of Insurance relative to insurer material transactions.

R.C. 3901.83

Record containing the medical history, diagnosis, prognosis, or medical condition of an enrollee of a health insuring corporation, insured of an insurer, or plan member of a public employee benefit plan, which is provided to Superintendent of Insurance under law.

R.C. 3903.11

Certain records pertaining to delinquency proceedings against an insurer and judicial reviews of those proceedings.

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Appendix B* Citation

Topic

R.C. 3903.72(B)(3)(g)

A memorandum received by the Superintendent of Insurance in support of a qualified actuary’s opinion on the valuation of an insurance company’s reserves for policies and annuities and other related information.

R.C. 3905.24

Under certain circumstances, records and other information obtained by the Superintendent of Insurance in an investigation of an insurance agent license applicant, or of an agent, solicitor, broker, or other person licensed or appointed under the Insurance Producers Licensing Law, the Public Insurance Adjusters Law, the Home Warranty Companies Law, or the Third-Party Administrators Law.

R.C. 3905.50(H)

Information or documentation provided to an agent or to the Superintendent of Insurance by an insurer regarding termination of an independent insurance agency contract.

R.C. 3911.021

Reports maintained by the Superintendent of Insurance regarding measures taken by a life insurance company to detect and prevent stranger-originated life insurance.

R.C. 3916.11(D), 3916.12(E), and 3916.18(E)(1) and (G)(2)

Certain viator-related and other information, documents, reports, etc. produced or acquired by the Superintendent of Insurance in the course of an examination under the Viatical Settlements Law; documents and evidence obtained by the Superintendent in an investigation of a suspected or actual fraudulent viatical settlement act; antifraud plans submitted to the Superintendent under that law; proprietary information of viatical settlement licensees; individual transaction data; and data that could compromise the privacy of the viator’s or insured’s personal, financial, and health information.

R.C. 3929.302(G) and (I)

Information reported to the Department of Insurance by insurers and related entities or by attorneys or law firms regarding any medical, dental, optometric, or chiropractic claim asserted against a risk located in Ohio, if the claim resulted in a final judgment in any amount, a settlement in any amount, or a final disposition of the claim resulting in no indemnity payment on behalf of the insured.

R.C. 3929.68

Reports and communications made in connection with certain actions of the Medical Liability Underwriting Association, the Stabilization Reserve Fund, the Superintendent of Insurance, and others.

R.C. 3930.10

Reports and communications concerning the performance of powers and duties by the Ohio Commercial Insurance Joint Underwriting Association, the Superintendent of Insurance, and others under the Commercial Market Assistance Plan Law.

R.C. 3935.06

Information submitted for an examination of policies, etc. by an insurance rating bureau.

R.C. 3937.42(F)

Information a law enforcement or prosecuting agency receives from an insurance company investigating a claim involving motor vehicle or vessel insurance, until a specified time.

R.C. 3953.231(E)

Statements and reports submitted by a financial institution regarding trust account (IOTA) interest used to fund legal aid programs.

R.C. 3955.14(A)(2)

Ohio Insurance Guaranty Association’s recommendations regarding the status of certain member insurers.

R.C. 3956.12(A)(4), (C), and (E)

Certain records concerning the detection and prevention of life and health insurance company insolvencies (Superintendent of Insurance and the Board of Directors of the Ohio Life and Health Insurance Guaranty Association).

R.C. 3961.07(C) and (G)

All records and other information concerning a discount medical plan organization obtained by the Superintendent of Insurance in an examination or investigation of the business and affairs of such an organization.

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Appendix B* Citation

Topic

R.C. 3999.36(C)

Written notice of impairment sent by an insurer to the Superintendent of Insurance.

R.C. 4104.19(E)(1)

The examination for a license to operate as a steam engineer, high pressure boiler operator, or low pressure boiler operator.

R.C. 4111.14(H) and (I)

The name of a person who makes a complaint, and all records and information related to investigations by the state, regarding an employer’s compliance with the constitutional minimum wage requirements.

R.C. 4112.05(B)(2) and (3)(c) and 149.43(A)(1)(i)

All information that was obtained as a result of or that otherwise pertains to a Civil Rights Commission preliminary investigation into allegedly unlawful discriminatory practices, prior to certain Commission actions.

R.C. 4121.44(D)(1) and (H)(3)

Certain vendor and other information associated with the Bureau of Workers’ Compensation qualified health plan system, health partnership program, and health care data program.

R.C. 4121.45

Information in a claim file that an Industrial Commission ombudsperson accesses that that would tend to prejudice the case of either party to a claim or that would tend to compromise a privileged attorney-client or doctor-patient relationship.

R.C. 4123.27

Information contained in employer annual statements filed with the Bureau of Workers’ Compensation (BWC) and information regarding recipients of public assistance provided to BWC by DJFS.

R.C. 4123.88

Claim files and other information concerning a claim or appeal filed with the Bureau of Workers’ Compensation or the Industrial Commission and information directly or indirectly identifying the address or phone number of a claimant.

R.C. 4125.05(E) and (F)

All records, reports, client lists, and other information obtained by BWC from a professional employer organization, including the list of client employers included on the registration form.

R.C. 4141.162(E), 4141.21, and 4141.22

Certain information maintained by the Director of Job and Family Services under the Unemployment Compensation Law; and redisclosure of information declared confidential by the Unemployment Compensation Law.

R.C. 4163.07(C)

Information pertaining to any shipment of special nuclear material or by-product material, until specified time (Executive Director of Emergency Management Agency).

R.C. 4167.10(B)(1) and 4167.12

Names of individuals who request inspections for a violation of an Ohio Employment Risk Reduction Standard (OERRS); and trade secret information reported in an OERRS investigation, inspection, or proceeding (BWC).

R.C. 4301.441

Any information provided to a state agency by the Department of Taxation necessary to verify a permit holder’s gallonage or noncompliance with taxes levied under the Liquor Control Law or the Motor Vehicle Law.

R.C. 4303.17(A)(1)

Information acquired by the Department of Commerce’s Division of Liquor Control concerning a D-4 liquor permit holder’s membership roster.

R.C. 4501.15

Social Security Numbers from the driver’s license and vehicle registration records maintained by the Department of Public Safety and credit card account numbers or any other information obtained when a person uses a credit card to pay motor vehicle registration taxes or fees, license fees, or other similar taxes, fees, penalties, or charges imposed or levied by the state and collected by the Department.

Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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Appendix B* Citation

Topic

R.C. 4501.27

An individual’s driver’s license identification number, name, telephone number, address, photograph or digital image, Social Security number, and medical or disability information obtained by the Bureau of Motor Vehicles in connection with a motor vehicle record, subject to certain exceptions (“personal information” and “sensitive personal information”).

R.C. 4501.271(B)

Under certain circumstances, a peace officer’s, correctional employee’s, or youth services employee’s residential address obtained by the Bureau of Motor Vehicles in connection with a motor vehicle record.

R.C. 4501.34(B)

Any information on driver’s license applications other than lists of names and addresses (Registrar of Motor Vehicles).

R.C. 4501.81(A)

Information in the Next of Kin Database established by the Bureau of Motor Vehicles.

R.C. 4507.20

Any report submitted to the Registrar of Motor Vehicles by a physician stating that, in the physician’s professional opinion, the holder of a driver’s or commercial driver’s license may be incompetent or otherwise not qualified to operate safely a motor vehicle due to medical reasons.

R.C. 4509.10

Motor vehicle accident reports submitted to the Registrar of Motor Vehicles under the Financial Responsibility Law.

R.C. 4517.43(A)

Applications for licenses and copies of contracts provided under the Motor Vehicle Dealers Law to the Registrar of Motor Vehicles.

R.C. 4519.46

Snowmobile, off-highway motorcycle, or all-purpose vehicle accident reports received by the Registrar of Motor Vehicles.

R.C. 4563.30(D)

Copies of airport registrations, emergency locater maps, and security plans that are required to be provided to, and that are in the possession of, the Department of Public Safety, the Office of Aviation, a sheriff, or a chief of police.

R.C. 4582.091(A) and 4582.58(B)

Certain trade secret and other financial and proprietary information submitted by an employer to a port authority or specified nonprofit corporation; other information so submitted until specified time.

R.C. 4701.04(K)(1), 4701.19(B), and 4701.29(D)

In certain legal proceedings, the proceedings, records, and work papers of a public accounting firm peer reviewer; the statements, records, schedules, working papers, and memoranda made by a public accountant or CPA with respect to an audit of a public office or private entity (other than client’s copy of report), including the same in Auditor of State’s possession; and the investigative proceedings of the Accountancy Board.

R.C. 4705.10(B)

Statements and reports of individual depositor information relative to attorney interest-bearing trust accounts.

R.C. 4715.03(D)

State Dental Board proceedings concerning an investigation of a complaint and the determination in them whether reasonable grounds exist to believe a violation of the Dentists and Dental Hygienists Law has occurred.

R.C. 4719.02(E)

Social Security Number, bank account, and other specified information submitted in an application for a certificate of registration or registration renewal as a telephone solicitor.

R.C. 4723.09(C)

BCII criminal records check results and associated report relative to a registered nurse or licensed practical nurse license applicant.

R.C. 4723.28(I), 4723.282(D), and 4723.35(E)

Information received by the Board of Nursing in an investigation of an alleged violation of the Nurses Law; records of the Board for the purpose of the practice intervention and improvement program; and all records of a participant in the Board’s chemical dependency monitoring program.

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Appendix B* Citation

Topic

R.C. 4723.65(B)(3)

A criminal records check provided to the Board of Nursing by an applicant for a medication aide certificate or by BCII regarding such an applicant.

R.C. 4723.75(C)

BCII criminal records check results and associated report relative to a dialysis technician certificate applicant.

R.C. 4723.83(B)

BCII criminal records check results and associated report relative to a community health worker certificate applicant.

R.C. 4725.22(C) and 4725.23(C)

Information the State Board of Optometry receives regarding the final disposition of a claim or malpractice action against an optometrist; and information the Board receives in an investigation of an alleged violation of the Optometrists Law, including identifying information about patients or complainants.

R.C. 4727.18

Information arising from, obtained by, or contained in the Superintendent of Financial Institutions’ investigation of a pawnbroker or of another person the Superintendent reasonably suspects has violated or is violating the Pawnbroker Law.

R.C. 4729.79(C)

Information contained in, and any information obtained from, the drug database established and maintained by the State Board of Pharmacy and information contained in the records of requests for information from the database.

R.C. 4730.26(F), 4730.32(F), 4731.22(F)(5), 4731.224(F), 4760.14(E), 4760.16(F), 4762.14(E), 4762.16(F), 4774.14(E), and 4774.16(F)

Information the State Medical Board receives in an investigation of an alleged violation of the Physician Assistants Law, the Physicians Law, the Anesthesiologist Assistants Law, the Acupuncturists Law, or the Radiologist Assistants Law; and summaries, reports, and records the Board receives and maintains regarding formal disciplinary actions taken with respect to physician assistants, physicians, anesthesiologist assistants, acupuncturists, or radiologist assistants by a health care facility, their alleged violations of the applicable law, their professional membership revocation or suspension for certain reasons, or their professional liability insurance claim final dispositions.

R.C. 4734.32(F), 4734.41(C), and 4734.45(B)

Summaries, reports, and records the State Chiropractic Board receives and maintains regarding formal disciplinary actions taken with respect to chiropractors by a health care facility, their alleged violations of the Chiropractors Law, their professional membership revocation or suspension for certain reasons, or their professional liability insurance claim final dispositions; records of a chiropractor’s participation in the Board’s chemical dependency and mental illness monitoring program; and information the Board receives in an investigation of an alleged violation of the Chiropractors Law.

R.C. 4735.05(D)

Information obtained in investigations and audits concerning alleged violations of the Real Estate Brokers and Salespersons Law, and associated reports, documents, and work products prepared or maintained by the Department of Commerce, Superintendent of Real Estate and Professional Licensing, and investigators, auditors, or other personnel of the Department.

R.C. 4738.14

Applications for licenses as a motor vehicle salvage dealer.

R.C. 4740.04(B)(1)

Contractor examinations that the administrative section of the Ohio Construction Industry Licensing Board is responsible for administering.

R.C. 4751.041 and 149.43(A)(1)(u)

Test materials, examinations, or evaluation tools used in an examination for licensure as a nursing home administrator that the Board of Examiners of Nursing Home Administrators administers or contracts with another entity to administer.

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Appendix B* Citation

Topic

R.C. 4752.08, 4761.03(E), and 4761.031

Confidential information obtained by, and the identity of complainants to, the Ohio Respiratory Care Board during investigations of alleged violations of the Respiratory Care Law.

R.C. 4755.02 and 4755.61(A)(7)

Information and records received or generated in investigations under the Occupational Therapist, Physical Therapist, and Athletic Trainers Law; and other information obtained by the Athletic Trainers Section of the Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board regarding applicable violations of the Law.

R.C. 4757.38

Records of the Counselor, Social Worker, and Marriage and Family Therapist Board’s investigations of alleged violations of the Counselor, Social Worker, and Marriage and Family Therapist Law.

R.C. 4758.31

Records of the Chemical Dependency Professionals Board concerning an ongoing investigation.

R.C. 4763.03(D) and (E)

Information obtained in investigations of alleged violations of the Real Estate Appraisers Law.

R.C. 4763.05(A)(1)(a)

The current residence address of an applicant for an initial state-certified general real estate appraiser certificate, an initial state-certified residential real estate appraiser certificate, an initial state-licensed residential real estate appraiser license, or an initial state-registered real estate appraiser assistant registration that is retained by the Superintendent of Real Estate.

R.C. 4765.06(C) and (E), 4765.102, and 4765.12(B)

Deliberations of persons performing risk adjustment functions under the emergency medical services incidence reporting system of the State Board of Emergency Medical Services; information the Board or the Department of Public Safety collects or receives that would identify a specific patient or recipient of emergency medical services or trauma care; information the Board receives pursuant to an investigation; and information generated solely for use in a peer review or quality assurance program conducted for an emergency medical service organization.

R.C. 4767.06(A)(7)

Proceedings and records maintained as confidential by the Ohio Cemetery Dispute Resolution Commission because the nature of a complaint merits the action.

R.C. 4769.07

Patient identifying information the Department of Health obtains in a Health Care Practitioner Balance Billing Law alleged violation investigation.

R.C. 4776.04

The results of a BCII criminal records check conducted for certain occupational licenses.

R.C. 4901.16

Certain information acquired by a Public Utilities Commission (PUCO) employee or agent concerning a public utility.

R.C. 4905.82(B) and (C)

Information concerning corporate structure and personnel on a uniform permit application, or for a background investigation for an application for a uniform permit as a carrier of hazardous wastes, submitted to the PUCO.

R.C. 4928.06(F)

Confidential information provided to the PUCO regarding competitive retail electric service.

R.C. 4928.62(D)

Financial statements, financial data, and trade secrets the Director of Development receives under the Energy Efficiency Revolving Loan Program and any information taken from those statements, data, or trade secrets.

R.C. 4929.23(A)

Information concerning competitive retail natural gas service provided by retail natural gas suppliers or governmental aggregators to the PUCO.

R.C. 4931.06(B)

Any communication made by or to a person with a communicative impairment with the assistance of a communications assistant at a telecommunications relay service.

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Appendix B* Citation

Topic

R.C. 4931.49(F)

Information concerning telephone numbers, addresses, or names obtained from the 9-1-1 database.

R.C. 4931.66(B)

Any information provided to the Ohio 9-1-1 Coordinator by a wireless service provider, the State Highway Patrol, and each subdivision operating one or more public safety answering points for a countywide system providing wireless 9-1-1 that is provided for the purpose of carrying out the wireless 9-1-1 program if the information consists of trade secrets or of information regarding the customers, revenues, expenses, or network information of a telephone company.

R.C. 4981.03(D) and 4981.29(A)(7)

Confidential data or information obtained from a railroad by the Ohio Rail Development Commission, and trade secrets and proprietary information the Commission receives.

R.C. 5101.131 and 5101.133

Information contained in or obtained from the Uniform Statewide Automated Child Welfare Information System.

R.C. 5101.181(B) and (D) and 5101.27

Information regarding recipients of public assistance (procedure for determination of overpayments and other purposes).

R.C. 5101.182

Information furnished by the Tax Commissioner to certain officials as part of the procedure to determine overpayment of public assistance.

R.C. 5101.29 and 149.43(A)(1)(z)

Names and other identifying information regarding children enrolled in or attending, and individuals who make a complaint about, a child day-care center or home or an institution or association that receives, desires to receive and care for, or places children in homes, and names, documentation, and other information regarding a foster caregiver or prospective foster caregiver.

R.C. 5101.31

Any record, data, pricing information, or other information regarding a drug rebate or supplemental drug rebate agreement for the Medicaid Program that DJFS receives from a pharmaceutical manufacturer or creates pursuant to negotiation of the agreement.

R.C. 5101.572

Information provided by a third party to DJFS to identify individuals for the purpose of establishing third party liability pursuant to Title XIX of the Social Security Act.

R.C. 5101.61(F)

Reports made to DJFS concerning adult abuse, neglect, or exploitation and related investigatory reports.

R.C. 5104.011(C)(2)

Enrollment, health, and attendance records for children attending a day-care center and health and employment records for center employees.

R.C. 5104.012(D), 5104.013(F), 5119.072(C), 5123.081(H), 5126.28(H), and 5153.111(D)

BCII criminal records check information relative to a day-care center, type A family day-care home, or certified type B family day-care home employment applicant; a day-care center or type A family day-care home owner, licensee, or administrator; a Department of Mental Health employment applicant; a Department of Developmental Disabilities (DODD) employment applicant; a county board of DD employment applicant; or a public children services agency employment applicant.

R.C. 5107.71 and 5107.715

Information about a member of an assistance group applying for and participating in Ohio Works First who has been subjected to domestic violence.

R.C. 5111.032(B)(1) and (I)

BCII criminal records check information relative to any provider, applicant to be a provider, employee or prospective employee of a provider, owner or prospective owner of a provider, officer or prospective officer of a provider, or board member or prospective board member of a provider of Medical Assistance Programs under the Social Security Act.

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Appendix B* Citation

Topic

R.C. 5111.033(E)

BCII criminal records check information relative to an applicant under final consideration for employment, or an existing employee, with a waiver agency in a position involving home and community-based waiver services to persons with disabilities.

R.C. 5111.034(F)

BCII criminal records check information relative to an independent provider in a DJFS administered home and community-based services program providing home and communitybased waiver services to consumers with disabilities.

R.C. 5111.61(A) and (B)

Any record that identifies or would tend to identify a nursing facility resident, an individual who submits a complaint about a nursing facility, or an individual who provides information about a nursing facility (DJFS).

R.C. 5112.21

Information filed under the Hospital Care Assurance Program that includes patient-identifying material (repealed, effective 10-16-2011)

R.C. 5119.22(I)

The source of a complaint of a Residential Facilities Law violation when disclosure could be detrimental to the Department of Mental Health’s purposes or could jeopardize the investigation.

R.C. 5120.17(K), 5120.21, 5120.211(B)(1) and (F), and 149.43(A)(1)(k)

Certain records that identify an inmate under the law concerning transfer of mentally ill or mentally retarded inmates from a Department of Rehabilitation and Correction (DRC) state correctional institution to a psychiatric hospital; certain records maintained by DRC; and DRC quality assurance records.

R.C. 5120.60(G)

Information provided to the Office of Victim Services in DRC’s Division of Parole and Community Services by victims of crime or victim representatives for certain purposes.

R.C. 5122.31, 5122.311(B), and 5122.32(B)(1)

Certificates, applications, records, and reports identifying patients, former patients, or persons whose hospitalization was sought under the Hospitalization of the Mentally Ill Law; notices (including their information) BCII receives from courts or others in order to conduct incompetency records checks (the notices pertain to individuals found by a court to be a mentally ill person subject to hospitalization by court order and individuals who become involuntary patients other than only for purposes of observation); and quality assurance records associated with mental health and medical services at certain locations.

R.C. 5122.47

Records or information used by the Department of Mental Health to create compilations relating to patients buried on hospital grounds that must be deposited with the Ohio Historical Society and the State Library.

R.C. 5123.05, 5123.19(L), 5123.31, 5123.51(G), and 5123.57

Records created or received pursuant to a Department of Developmental Disabilities (DODD) audit; the source of certain complaints made to DODD; certain records maintained by DODD relative to residents in its institutions or persons committed to or discharged or transferred from them; files and records of certain DODD investigations pertaining to abuse or neglect of an individual with mental retardation or a developmental disability or misappropriation of such an individual’s property; and information in DODD records pertaining to a mentally retarded or developmentally disabled person for whom a guardian, trustee, or protector has been appointed.

R.C. 5123.60(G), 5123.601(D), 5123.602, and 5123.603(B)

All records received or maintained by the Legal Rights Service (LRS) in connection with any investigation, representation, or other activity; communications between personnel and agents of LRS and its clients; the identities of certain individuals who provide information to the LRS’s Ombudsman Section; certain communications with the Ombudsman Section; and the Ombudsman Section’s records and files.

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Appendix B* Citation

Topic

R.C. 5123.61(M) and 5123.611(C)

Reports of wounds, injuries, disabilities, and conditions reasonably indicating abuse or neglect or of another major unusual incident made to the Department of Developmental Disabilities (DODD) relative to developmentally disabled persons, and DODD’s associated report on a review committee’s recommendations.

R.C. 5123.62(T)

Information in the personal and medical records of mentally retarded and developmentally disabled persons.

R.C. 5123.89(A)

Certificates, applications, records, and reports identifying residents, former residents, or persons whose institutionalization was sought under the Mental Retardation and Developmental Disabilities (MRDD) Law.

R.C. 5126.044

The identity of an individual who requests programs or services of a county Developmental Disabilities (DD) board, and the record of a person eligible for the programs or services.

R.C. 5126.31(E)

Reports by a county \ Developmental Disabilities (DD) board of reviews of abuse and neglect allegations.

R.C. 5139.05(D), 5139.56(C), and 149.43(A)(1)(l)

Records maintained by the Department of Youth Services (DYS) pertaining to the children in its custody, records DYS provides to a school district in which a child released from the Department’s custody is entitled to attend school, and certain victim-related statements pertaining to a child who is committed to DYS’s legal custody and who is the subject of a release hearing.

R.C. 5153.17 and 5153.173

Records kept by a public children services agency concerning certain investigations; and information an agency possesses concerning a deceased child if a court determines disclosing the information would not be in the best interest of the deceased child’s sibling or another specified child.

R.C. 5153.171 and 149.43(A)(1)(t)

Records provided to and statements made by the executive director of a public children services agency or a prosecuting attorney under certain circumstances involving deceased children whose deaths may have been caused by abuse, neglect, or other criminal conduct.

R.C. 5153.175(C)

Information provided to DJFS or a county department of job and family services by a public children services agency regarding child abuse or neglect that involves a person who has applied for licensure or renewal of licensure as a type A family day-care home or certification or renewal of certification as a type B family day-care home.

R.C. 5153.176(D)

Information provided to the Superintendent of Public Instruction by a public children services agency regarding the agency’s investigation of a report of child abuse or neglect involving a person who holds a license issued by the State Board of Education if the agency has determined that child abuse or neglect occurred and that abuse or neglect is related to the person’s duties and responsibilities under the license.

R.C. 5501.55(D)(1) and 5501.56(B)

Reports of an investigation the Department of Transportation (ODOT) or an ODOT contractor conducts relative to the safety practices of rail fixed guideway systems; and any part of a transit agency’s system safety program plan that concerns security for the system.

R.C. 5502.03(B)(2)

Information collected, analyzed, maintained, and disseminated by the Division of Homeland Security to support local, state, and federal law enforcement agencies, other government agencies, and private organizations in detecting, deterring, preventing, preparing for, responding to, and recovering from threatened or actual terrorist events.

R.C. 5502.12

State Highway Patrol (SHP) reports, statements, and photographs relative to accidents it investigates, in the Director of Public Safety’s discretion and until a specified time.

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Appendix B* Citation

Topic

R.C. 5505.04(C) and (D)(4)

State Highway Patrol Retirement Board records containing a personal history record or monthly allowance or benefit information; the identity of recipients of public assistance.

R.C. 5525.04 and 5525.15

Information the Director of Transportation receives from transportation construction project contract bidders, and the estimate of cost of any project to be constructed by ODOT by competitive bidding, in the Director’s discretion until the occurrence of specified events.

R.C. 5537.07(A)

The cost estimate for the construction, demolition, alteration, repair, improvement, renovation, or reconstruction of roadways and bridges for which the Ohio Turnpike Commission is required to receive bids, in the Commission’s discretion and until a specified time.

R.C. 5703.21(A) and (C)(9) and 5703.53(I)

Information acquired by a Department of Taxation agent as to any person’s transactions, property, or business; notices or documents provided to a county auditor concerning the taxable value of property in the county; certain opinions the Tax Commissioner prepares for a taxpayer; and identifying information in an opinion.

R.C. 5709.081(D)

Certain records of a corporation that owns tax-exempt “public recreational facility” property used by a major league professional team.

R.C. 5711.10, 5711.101, 5711.11, 5711.18, 5711.25, and 5711.26

An investments-related document filed with returns of taxable property under certain circumstances; a document filed with returns of taxable property when the Tax Commissioner requires a business to file a financial statement or balance sheet; tax returns listing personal property used in business or credits and other returns; information about a taxpayer’s business, property, or transactions the Tax Commissioner obtains for the purpose of adopting or modifying the method of determining true value; and preliminary, amended, and final assessment certificates concerning certain taxpayers.

R.C. 5715.49 and 5715.50

Taxpayer transactions, property, or business information acquired by a county auditor; county board of revision member; expert, clerk, or employee of a county auditor, a county board of revision, or the Tax Commissioner; or Tax Commissioner deputy, assistant, or agent, in the course of employment.

R.C. 5727.11(I)

Information about the business, property, or transactions of any public utility obtained by the Tax Commissioner in adopting or modifying the utility’s composite annual allowance.

R.C. 5731.90(A)(1)

For purposes of the Ohio Estate Tax Law, certain tax returns and information the probate court, Department of Taxation, county auditor or treasurer, municipal or township fiscal officer, Attorney General, or other authorized person possesses.

R.C. 5733.03, 5733.056(B)(4), and 5733.42(E)

For purposes of the Corporation Franchise Tax Law, information gained from returns, investigations, hearings, or verifications; a financial institution’s balance sheet made available upon the Tax Commissioner’s request; and financial statements and other information submitted to the Director of Job and Family Services for an employee “eligible training program” tax credit.

R.C. 5735.33

For purposes of the Motor Vehicle Fuel Tax Law, information the Tax Commissioner acquires by examination of records, books, and papers, and information acquired by Department of Taxation employees in an investigation.

R.C. 5739.35, 5741.24, 5743.45, and 5747.60

Information acquired by Department of Taxation employees in an investigation under the Sales Tax Law, the Use Tax Law, the Cigarette Tax Law, or the Personal Income Tax Law.

R.C. 5747.18

Information from a return, investigation, hearing, or verification associated with the Personal Income Tax Law.

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Appendix B* Citation

Topic

R.C. 5751.12

Any information required by the Tax Commissioner under the Gross Receipts Tax Law.

R.C. 5901.09(A), (B), and (C) and 5902.04(B) and (C)

Certain documents and information relative to applications for financial assistance to a county veterans service commission and, generally, commission documents that the Director of Veterans Services obtains that identify applicants for or recipients of financial assistance.

R.C. 6111.05

Records, reports, or information accessible under the Water Pollution Control Law by the Director of Environmental Protection that constitute trade secrets.

R.C. 6121.21 and 6123.20

Records or information relating to secret processes or secret methods of manufacture or production the Ohio Water Development Authority obtains.

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Appendix C Ohio Attorney General Opinions Interpreting Ohio’s Public Records Act The following are summaries of the Opinions of the Ohio Attorney General that have addressed or interpreted the Ohio Public Records Act. Be aware that the validity of any one opinion may have been affected by a subsequent court opinion or statutory change. The full text of these opinions can be found at http://www.ohioattorneygeneral.gov. 1

2010-016 Ohio Revised Code § 1347.15 requires every state agency to adopt rules regulating access to its confidential personal information systems, but excepts any judicial agency from such requirements. A judicial agency is part of the judicial branch of government or renders judgments in quasi-judicial proceedings. The Board of Tax Appeals renders judgments to resolve justiciable disputes arising under Ohio's tax laws and its proceedings are quasi-judicial in nature. The BTA is therefore not subject to the requirements of R.C. 1347.15.

2008-019 An audio tape recording of a meeting of a board of township trustees that is created by the township fiscal officer for the purpose of taking notes to create an accurate record of the meeting, as required by R.C. 507.04(A), is a public record for purposes of R.C. 149.43. The audio tape recording must be made available for public inspection and copying, and retained in accordance with the terms of the township records retention schedule for such a record.

2008-003 Depending on the manner in which it is formed and operated, a nonprofit corporation formed under R.C. 183.061 might be subject to the public records law in R.C. 149.43, the open meetings law in R.C. 121.22, or particular contracting controls governing state agencies.

2007-042 A county coroner who performs an autopsy and forensic examination, pursuant to contract with the coroner who has jurisdiction over the case, is not required by R.C. 313.09 to keep the autopsy and examination reports he prepares, but he must keep copies of the reports in conformance with his office’s records retention schedule, as filed and approved in accordance with R.C. 149.38.

1

Only opinions after 1994 are available electronically. When searching the full text of these opinions on the AG website use the numbers found in bold above each body of text. If using another search method (such as LexisNexis or Westlaw) the citation format needed will be different. For example, if trying to locate the first opinion listed on this page, the format used would be: 2008 Ohio Op. Att’y Gen. No. 019.

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Appendix C A county coroner who performs an autopsy and forensic examination, pursuant to contract with the coroner who has jurisdiction over the case, is required by R.C. 149.43 to make available to any person for inspection and copying the copies of the autopsy and forensic examination reports that he prepared for the jurisdictional coroner, unless a report is not a public record under a statutorily defined or constitutionally mandated exception. A county coroner who performs an autopsy and forensic examination, pursuant to contract with the coroner who has jurisdiction over the case, has no duty under R.C. 313.10(D) or (E), or R.C. 149.43, to make available to journalists or insurers copies of any records that his office has retained in connection with performance of the contract if the records are not public records.

2007-039 In the context of R.C. 2923.129, which concerns the powers and duties of a county sheriff with respect to information kept pertaining to licenses to carry concealed handguns, a journalist is prohibited from making a reproduction by any means, other than through his own mental processes, of the information the journalist is permitted to view under that statute. A sheriff may exercise his discretion in determining a reasonable manner by which a journalist may view, but not copy, that information so long as the confidentiality of other information relative to licenses to carry concealed handguns in maintained. Subject to the journalist exception, revealing, disclosing, or otherwise making known any of the information made confidential by the statute is prohibited except as required by a court order, or unless a statute specifically authorizes or requires other uses of such information. R.C. 2923.129(B) (1) does not prohibit a newspaper from publishing information that a journalist has viewed in accordance with the statute.

2007-034 A piece of physical evidence collected by law enforcement in connection with a criminal investigation and held by a county prosecuting attorney following conclusion of the trial, appeals, and post conviction proceedings to which the evidence pertains is not a public record for purposes of R.C. 149.43.

2007-026 Article II, Section 34a of the Ohio Constitution and Am. Sub HB690, 126th Gen. A. (2006) (eff. April 4, 2007) do not render confidential information about a public employee’s rate of pay, the number of hours worked by the employee, or the amount of compensation paid to the employee, nor do they otherwise exempt this information from inspection and copying under R.C.149.43. Therefore, any person, including any co-worker of the public employee, has the right under R.C. 149.43 to inspect and copy information about a public employee’s pay rate, hours worked and amounts paid.

2007-025 The “good cause” standard described in 1991 Op. Att’y Gen. No. 91-003, under which the executive director of a public children services agency (PCSA) determines whether to grant access to child abuse or neglect investigation records included as confidential records under R.C. 5153.17, is applicable to all PCSA records described in R.C. 5153.17, including records pertaining to matters other than child abuse or neglect investigations. (1991 Op. Att’y Gen. No. 91-003, approved and clarified.)

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Appendix C A PCSA is responsible for keeping records described in R.C. 5153.17 confidential and may disclose them only as authorized by statute, in accordance with the “good cause” standard described in 1991 Op. Att’y Gen. No. 91-003. If, in conjunction with a criminal proceeding or investigation or a civil proceeding, a PSCA received a subpoena requesting the disclosure of information that is confidential under R.C. 5153.17, the PCSA, in order to preserve the confidentiality prescribed by statute, may file a motion to quash the subpoena, thereby seeking from the court an in camera review of the PCSA’s records and a determination as to whether and to what extent the information may be disclosed.

2006-038 In the absence of a statute to the contrary, foreign individuals and entities domiciled in a foreign country are “persons” who are entitled to inspect and copy public records pursuant to R.C. 149.43.

2006-037 Except as provided in R.C. 149.43(A)(1)(a)-(y) and R.C. 1724.11, information kept in the records of a community improvement corporation designated as an agency of a county under R.C. 1724.10 is a public record for purposes of R.C. 149.43.

2005-047 Because individuals possess a constitutionally protected privacy right in their social security numbers, such numbers when contained in a court’s civil case files are not public records for purposes of R.C. 149.43. Prior to releasing information from a court’s civil case files, the clerk of court has a duty to redact social security numbers included in those files. An individual’s personal financial information contained in a court’s civil case files is a public record for purposes of R.C 149.43 unless the information is not a “record” of the court or the information falls within one of the exceptions to the definition of the term “public record” set forth in R.C. 149.43(A)(1).

2004-050 Under Ohio law, a board of elections has a duty to preserve ballots in sealed containers until any possible recount or election contest is completed. Ballots are therefore not “public records” for purposes of R.C. 149.43 while they remain under seal or where they are subject to a court order prohibiting their release. In addition, they are not subject to inspection under R.C. 3501.13 during such time. However, once the time within which a possible recount or election contest may occur has passed, pursuant to R.C. 3501.13, such ballots are subject to public inspection “under such reasonable regulations as shall be established by the board.” Nonetheless, the board of elections remains under a duty to “carefully preserve” ballots used in an election for the remainder of the preservation period prescribed by R.C. 3505.31. In addition, following the completion of the canvass of election returns under R.C. 3505.32, poll books used in an election are public records of a board of elections and are subject to public inspection in accordance with any reasonable regulations the custodian board of elections has established under R.C. 3501.1.

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Appendix C 2004-045 Information within a criminal case file is subject both to Ohio’s public records law and a constitutional right of access. Therefore, whether information within a criminal case file may be withheld depends on whether the information meets or is exempt from the definition of a “public record” under the Public Records Act, R.C. 149.43(A) (1), and whether the qualified constitutional right has been overridden.

2004-033 A county recorder who makes available in her office a photocopying machine for use by the public may not charge the two-dollar per page fee set forth in R.C. 317.32(I) where the public without the assistance of the recorder or her staff operates the photocopier. The recorder is, instead, subject to R.C. 149.43(B), which requires a public office to provide copies of public records “at cost.”

2004-011 A county recorder may not impose a fee upon a requester to inspect records or make copies using their own equipment. However, the county recorder may impose reasonable rules governing the use and operation of such equipment.

2003-030 R.C. 2303.26 requires the clerk of courts to carry out her duties “under the direction of [her] court.” Once the judges of a court of common pleas have delegated to the judges of a division of that court authority to determine whether to make that division’s records available to the public through the Internet, and the judges of that division have ordered that its records are not to be accessible to the public through the Internet, the clerk of courts must obey that order, unless a court of competent jurisdiction reverses that order or prohibits its enforcement.

2003-025 Information within investigatory work product of a law enforcement office that pertains to case the records of which have been ordered sealed or expunged pursuant to R.C. 2953.31-2953.61 or R.C. 2151.358 may not be publicly disclosed pursuant to Ohio’s Public Records Act. However, the information may be discoverable under Ohio R. Crim. P. 16.

2002-040 Except as provided in R.C. 149.43(A)(1) and R.C. 2950.081(B), sex offender registration information submitted to a county sheriff by a sex offender who is required to register with the sheriff under R.C. Chapter 2950 may be made available to the general public on the Internet through the sheriff’s web site, provided such access to the public records does not endanger the safety and integrity of the records or interfere with the discharge of the sheriff’s duties.

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Appendix C A county sheriff that provides sex offender registration information to the general public on the Internet through a web site must provide a written notice containing the information set forth in R.C. 2950.11(B) to all the persons listed in R.C. 2950.11(A). Except for the persons listed in R.C. 2950.11(A)(1) and Ohio Admin. Code 109:5-2-03(A)(1)(c), a county sheriff may use e-mail to electronically transmit the written notice required by R.C. 2950.11(A). The persons listed in R.C. 2950.11(A)(1) and Rule 109:5-2-03(A)(1)(c) must receive the written notice required by R.C. 2950.11(A) by regular mail or by personal delivery to their residences.

2002-030 In the absence of facts indicating that the names and addresses of a county sewer district’s customers fall within one of the exceptions to the definition of “[p]ublic record” contained in R.C. 149.43(A)(1), such names and addresses are public records that are subject to disclosure by the sewer district in accordance with R.C. 149.43.

2002-014 Transcripts prepared pursuant to R.C. 2301.23 by a court reporter of the court of common pleas are public records under R.C. 149.43, unless the transcripts include or comprise a record that is excepted from the definition of “public record” in R.C. 149.43(A)(1). (1989 Op. Att’y Gen. No. 89-073, syllabus, paragraph two, approved and followed.) A party in a trial of a civil or criminal action in the court of common pleas that requests a photocopy of a transcript previously prepared pursuant to R.C. 2301.23 in the action is required to pay the compensation fixed by the judges of the court of common pleas under R.C. 2301.24 in order to obtain the photocopy of the transcript from the court. Each party in a trial of a civil or criminal action in the court of common pleas that requests a transcript pursuant to R.C. 2301.23 is required to pay the court reporter of the court of common pleas who prepares the transcript the compensation fixed by the judges of the court of common pleas in accordance with R.C.2301.24. Each time that a party in a trial of a civil or criminal action in the court of common pleas requests a transcript pursuant to R.C. 2301.23, the court reporter of the court of common pleas who prepares the transcript is entitled to the entire compensation fixed by the judges of the court of common pleas in accordance with R.C. 2301.24, unless the party requests at the same time more than one transcript of the same testimony or proceeding. In such a situation, pursuant to R.C. 2301.25, the court reporter is entitled to the entire compensation fixed by the judges of the court of common pleas in accordance with R.C. 2301.24 for the first copy and to one-half the compensation allowed for the first copy for each additional copy. A prosecuting attorney in a trial of a civil or criminal action in the court of common pleas or the court of appeals may not obtain a photocopy of a transcript previously prepared in the action from the court’s file without paying the court reporter of the court of common pleas or the court of appeals, respectively, the compensation fixed by the judges of the court of common pleas in accordance with R.C. 2301.24 or the judges of the court of appeals in accordance with R.C.2501.17, R.C. 9.92(E) and 2933.41(G) respectively.

2001-041 Information on a run sheet created and maintained by a county emergency medical services (EMS) organization that documents medication or other treatment administered to a patient by an EMS unit,

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Appendix C diagnostic procedures performed by an EMS unit, or the vital signs and other indicia of the patient’s condition or diagnosis satisfies the “medical records” exception of R.C. 149.43(A)(1)(a), and thus is not a “public record” that must be released to the public pursuant to R.C. 149.43(B). (1999 Op. Att’y Gen. No. 99-006, approved and followed.) Information on a run sheet created and maintained by a county emergency medical services organization that documents medication or other treatment administered to a patient by an EMS unit, diagnostic procedures performed by an EMS unit, or the vital signs and other indicia of the patient’s condition or diagnosis, and is relied upon by a physician for diagnostic or treatment purposes, is a communication covered by the physicianpatient testimonial privilege of R.C. 2317.02(B), and thus is confidential information, the release of which is prohibited by law for purposes of R.C. 149.43(A)(1)(v). (1996 Op. Att’y Gen. No. 96-005 and 1999 Op. Att’y Gen. No. 99-006, approved and followed.) If a physician authorizes an emergency medical technician (EMT) to administer a drug or perform other emergency medical services, documentation of the physician’s authorization and administration of the treatment or procedure by the EMS unit may also fall within the physician-patient testimonial privilege. A written protocol, developed pursuant to R.C. 4765.41, without reference to a particular patient, for use by emergency squad personnel in cases where communication with a physician is not possible and the patient’s life is in danger, does not establish, for purposes of R.C. 149.43(A)(1)(v), a physician-patient testimonial privilege between the physician who prepared the protocol and a patient who is treated by an EMS unit pursuant to that protocol, where there is no further communication by the EMS unit with the physician about the condition or treatment of the patient. If an EMS unit administers a controlled substance to a patient, the patient’s name and address documented on the run sheet will, pursuant to 11 Ohio Admin. Code 4729-9-14(A)(3) (Supp. 2000-2001), be deemed to meet a portion of the record keeping requirements of R.C. 3719.07, and thus will be confidential under the terms of R.C. 3719.13, if the run sheet becomes a permanent part of the patient’s medical record. However, information on the run sheet that pertains to the administration of a drug that is not a controlled substance is not required by R.C.3719.07 or other provision of R.C. Chapter 3719, and thus does not fall within the confidentiality requirements of R.C. 3719.13.

2001-012 Data, photographs, maps, and other information created, collected, prepared, maintained, and published pursuant to R.C. 1504.02(A)(6) by the Department of Natural Resources’ Division of Real Estate and Land Management are public records for purposes of R.C. 149.43. If the Department of Natural Resources stores, produces, organizes, or compiles public records in such a manner that enhances the value of data or information included therein, it may charge for copies an amount that includes the additional costs of copying the information in such enhanced or “value-added” format. R.C. 1501.01, which authorizes the director of the Department of Natural Resources to “publish and sell” data, reports, and information, does not authorize the director to charge an amount in excess of its actual cost for providing copies of the records created and maintained pursuant to R.C. 1504.02(A)(6).

2000-046 A county recorder may make indexed public records available through the Internet, provided this does not endanger the records or interfere with the recorder’s duties; a fee cannot be charged or collected to inspect or copy records from the Internet when a person does not use equipment maintained by the recorder; Internet access cannot be limited to real estate title companies.

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Appendix C 2000-036 Governor’s Office of Veterans Affairs is prohibited by 32 C.F.R. § 45.3(e)(4) from releasing a copy of a Certificate of Release or Discharge from Active Duty (DD Form 214) without the written consent of the service member who is the subject of the DD Form 214.

2000-021 R.C. 149.43, as amended by Am. Sub. S.B. 78, 123rd Gen. A. (1999) (eff. Dec. 16, 1999), imposes no duty upon any particular individual or office to notify public offices of a peace officer’s residential and familial information or to update the database. For purposes of R.C. 149.43, a child of a peace officer includes a natural or adopted child, a stepchild, and a minor or adult child. Under the definition in R.C. 149.43(A)(7), peace officer residential and familial information encompasses only records that both contain the information listed in the statute and disclose the relationship of the information to a peace officer or a spouse, former spouse, or child of the peace officer, and those are the only records that come within the statutory exception to mandatory disclosure provided by R.C. 149.43(A)(1)(p). The exception for peace officer residential and familial information applies only to information contained in a record that presents a reasonable expectation of privacy, and does not extend to records kept by a county recorder or other public official for general public access. The general provisions of R.C. 149.43 excluding peace officer residential and familial information from mandatory disclosure do not operate to impose requirements or limitations on systems of public records that have been designed and established for general public access, where there is no reasonable basis for asserting a privacy interest and no expectation that the information will be identifiable as peace officer residential and familial information. R.C.149.43 provides no liability for disclosing information that comes within an exception to the definition of “public record.” Liability may result, however, from disclosing a record that is made confidential by a provision of law other than R.C.149.43.

1999-012 When county office chooses to create customized document from existing public record it may only charge its actual cost, which does not include employee time or computer programming fees.

1999-006 Information on a county EMS run sheet that does not satisfy either the medical records exception or the “catch-all” exception is a public record and must be disclosed pursuant to R.C. 149.43(B). HIV testing information contained in run sheets must not be disclosed.

1997-038 Information submitted to county sheriff pursuant to R.C. Chapter 2950 by an individual who has been convicted of or pleaded guilty to a sexually oriented offense is a public record that must be made available for inspection to any person, except to the extent that such information comprises “records the release of which is prohibited by state or federal law.” Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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Appendix C 1997-001 Information in workers’ compensation claim file that indicates that an individual has been diagnosed as having AIDS or an AIDS-related condition is not a public record that the Bureau of Workers’ Compensation must disclose to the public.

1996-034 County recorder not required removing or obliterating Social Security Numbers from documents before recording those instruments.

1996-005 Records collected for trauma system registry or emergency medical services incidence reporting system that constitute medical records or physician/patient privilege do not constitute public records; the State Board of Emergency Medical Services is not required to disclose such records; and the Board is required to maintain confidentiality of any patient identifying information contained therein.

1995-001 PASSPORT administrative agency operated by a private non-profit agency is a public office for purposes of Ohio Public Records Act and public body for purposes of Ohio Open Meetings Act.

1994-089 Clerk of court cannot remove from a court file a pleading that is stricken from the record or an original pleading when a substitute pleading is filed in place of the original unless permitted by law or appropriate records commission.

1994-084 A county human services department may release the address of a current recipient of aid to dependent children, general assistance, or disability assistance to a law enforcement agency that has authority to apprehend an individual under an outstanding felony warrant.

1994-058 A township clerk is authorized to have access to estate tax returns or other records or information made confidential by R.C. 5731.90 in connection with the duties and responsibilities of the clerk; county treasurer who reports collection of estate tax to a township clerk is permitted to reveal the identity of taxpayer to the township clerk in the course of making the report.

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Appendix C 1994-046 All information pertaining to LEADS is not public record subject to disclosure.

1994-006 If a person requesting copies of public records stored by the county recorder on microfiche or film presents a legitimate reason why paper copies are insufficient or impracticable and assumes the expense of making the copies in that medium, the county recorder is required to make available in the same medium a copy of the portions of the microfiche or film containing the public records.

1993-038 When a court orders official records of a case sealed and such order does not require sealing of the pertinent official records of an administrative licensing agency, the agency is not required to seal its records; the agency may seal its records containing information prohibited from disclosure pursuant to R.C. 2953.35(A).

1993-010 Blueprints submitted to a county building inspection department for approval under 3791.04 are public records while in possession of the department.

1992-076 Estate tax returns and other tax returns filed pursuant to R.C. 5731 are confidential and may be inspected or copied only as provided in R.C. 5731.90; a township clerk has no authority to inspect or copy estate tax materials that are made confidential by R.C. 5731.90 except pursuant to court order for good cause shown.

1992-071 A county board of mental retardation and developmental disabilities may not disclose to a parent organization the names of the board’s clients or the names, addresses and phone numbers if the parents of the board’s clients unless proper consent is obtained.

1992-046 Reports and investigations pursuant to R.C. 2151.421 are confidential and dissemination of such information to an agency or organization is permitted only if the agency or organization has rules or policies governing the dissemination of confidential information consistent with O.A.C. 5101:2-34-38; O.A.C. 5101:2-34-38(F) permits disclosure of child abuse and neglect investigation information when the dissemination of information is believed to be in the best interest of an alleged child victim, his family, or caretaker, a child residing or

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Appendix C participating in an activity at an out-of-home care setting where alleged abuse or neglect has been reported, or a child who is an alleged perpetrator.

1992-005 A copy of a federal income tax Form W-2 prepared and maintained by a township as an employer is subject to inspection as a public record.

1991-053 Federal tax return information filed by an individual pursuant to R.C. 3113.215(B) (5) and a local rule of court is a public record; confidentiality of federal income tax returns is inapplicable to income tax returns submitted to a court of common pleas by a litigant in connection with a child support determination or modification proceeding in that court.

1991-003 County prosecuting attorney may release children services agency’s child abuse or neglect investigation file only with written permission of agency executive secretary; executive secretary may only grant permission for good cause; child abuse or neglect investigation records are not public records.

1990-103 Absent statutory authority, a county recorder is without authority to delete documents from the records of the county recorder.

1990-102 Ohio Public Records Act does not make confidential all records filed with Ohio taxation authorities; specific revised code sections make particular information confidential.

1990-101 Records of juvenile offenders are not public records to the extent they are law enforcement investigator records; sealed or expunged juvenile records are not public records.

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Appendix C 1990-099 Public school officials may not release information concerning illegal drug or alcohol use by students to law enforcement agencies where such information is personally identifiable information, other than directory information concerning any student attending a public school.

1990-057 Subject to the provisions of R.C. 149.351(A), a county official may, pursuant to a valid contract, temporarily transfer physical custody of the records of his office to a private contractor to microfilm such records at the facilities of the contractor; a contract must incorporate sufficient safeguards to prevent loss, damage, mutilation, or destruction of the records.

1990-050 Names, addresses, and telephone numbers of employees of a public school district are public records open to inspection by any person; motive is irrelevant even if for commercial purposes.

1990-007 Unless state or federal law prohibits disclosure to person who is subject of information kept by an Ohio public office, R.C. Chapter 1347 permits person to inspect and copy such information. Chapter 1347 is not a provision of state law prohibiting the release of information under R.C. 149.43.

1989-084 Records that do not constitute personal information systems as used in R.C. Chapter 1347 are not subject to disclosure provision of Chapter 1347; child abuse and neglect investigatory records maintained by public children services agency constitute investigatory material compiled for law enforcement purposes within the meaning of R.C. 1347(A)(1)(e).

1989-073 Shorthand notes taken pursuant to R.C. 2301.20 and transcripts prepared pursuant to 2301.23 are public records unless they include or comprise a record excepted from the definition of public record.

1989-055 A judicial determination that a particular entity is a public office under R.C. 149.011(A) is not determinative of the question whether that entity is a public office under R.C. 117.01(D) for purposes of audit and regulation by the Auditor of State.

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Appendix C 1989-042 Providing that properly approved record retention schedules under R.C. 149.333 permit disposal of paper or other original documents after recording by optical disk process, original documents may be destroyed and the recorded information stored on optical disks becomes the original of the public record.

1988-103 Application to the County Veterans Service Commission for assistance under R.C. chapter 5901 is a public record (now exempt, R.C. 121.22 and 149.43).

1987-024 A community improvement corporation organized pursuant to R.C. chapter 724 is not a political subdivision as that term is defined in R.C. 2744.01(F).

1987-010 A public school may not forward personal information regarding the first-time use of drugs or alcohol by a student on school property to local law enforcement agencies without the consent of the student’s parent or guardian, or the student, where appropriate.

1986-096 Disclosure of the number of persons employed by an applicant at the time of application for a loan is prohibited where such information is submitted to the Director of Development, the Controlling Board, or the Minority Development Financing Commission in connection with a loan application.

1986-089 A personnel file maintained by an exempted village school district is a public record except to the extent such file may include records that are excepted from the definition of the term public record.

1986-069 A letter requesting an advisory opinion from the Ohio Ethics Commission under R.C. 102.08 and the documents held by the Commission concerning such advisory opinion are public records.

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Appendix C 1986-033 The Unemployment Compensation Board of Review may, in accordance with the specific terms of the schedule of retention pertaining thereto and approved by the State Records Commission, destroy or dispose of its hearing records six months after a decision by the Board of Review becomes final; the hearing records shall be destroyed or disposed of within 60 days after the expiration of the six-month retention period, unless, in the opinion of the Board of Review, they pertain to any pending case, claim or action.

1985-087 Appraisal cards that are kept by the office of the county auditor and that contain information used in the evaluation and assessment of real property for purposes of taxation are subject to public inspection and disclosure of such documents does not violate either R.C. 5715.49 or R.C. 5715.50.

1984-084 Client records held by the Rehabilitation Services Commission in connection with the state vocational rehabilitation services program are not public records and cannot be disclosed without the consent of the person to whom the records relate.

1984-079 Grand jury subpoenas while in possession of the clerk of courts prior to issuance in accordance with R.C.2939.12 are not public records.

1984-077 Under R.C. 1347.08, a juvenile court must permit a juvenile or a duly-authorized attorney who represents the juvenile to inspect court records pertaining to the juvenile unless the records are exempted under R.C. 1347.04(A)(1)(e), 1347.08(C) or (E)(2). Under Juv. R. 37(B), the records may not be put to any public use except in the course of an appeal or as authorized by order of the court.

1984-015 The director of the Ohio Department of Mental Retardation and Developmental Disabilities may make available to persons approved by the director the medical, psychological, social, and educational records of persons who have been nominated for protective services pursuant to R.C. 5123.58.

1983-100 The Ohio State Board of Psychology does not have the authority to expunge or actually destroy its official records except as provided by law; it is not required to seal any of its official records unless an order sealing Ohio Attorney General Mike DeWine • Auditor of State Dave Yost • Ohio Sunshine Laws 2011: An Open Government Resource Manual

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Appendix C the same specifically directs the Board to do so by the court; and the Board may seal information or data contained in its official records which are not public records within meaning of 149.43(A)(1).

1983-099 Since the examinations administered by the State Board of Examiners of Architects are records under R.C. 149.40 and there is no law prohibiting the destruction of such examinations or requiring the retention of such examinations for a specified period of time, such examinations may be disposed of in accordance with a schedule of records retention or an application for records disposal approved by the State Records Commission pursuant to R.C. 149.32.

1983-071 A county department of welfare is prohibited from disclosing to law enforcement personnel personal information about applicants for or recipients of aid to Families with Dependent Children or poor relief unless such law enforcement personnel are prosecuting fraud or seeking child support and are directly connected with the enforcement of the Food Stamp Act or regulations, other federal assistance programs or general relief programs or the applicant or recipient has consented in writing.

1983-003 Materials of all varieties (including but not limited to, correspondence, memorandums, notes, reports, audio and video recordings, motion picture films, and photographs) which are received by public officials and employees, or created and maintained by them at public expense, are considered records if they serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the public office.

1982-104 Birth and death records kept by a probate court pursuant to R.C. 2101.12 are public records which must be made available to any member of the general public as required by R.C. 149.43, regardless of the motive which such member of the public has for inspecting such records.

1981-051 Neither federal law nor R.C. 149.43 exempts from disclosure records concerning amounts paid to individual providers by the state of Ohio in connection with the Medicaid program.

1981-043 A news-hook maintained by a city police department is not a public record under the terms of R.C. 149.43, and need not, therefore, be disclosed to all members of the public for any reason whatsoever.

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Appendix C 1981-038 With the exception of confidential law enforcement investigatory records, trial preparation records, and adoption records, the Ohio Civil Rights Commission must disclose to an employee personnel information that is subject to the provisions of R.C. Chapter 1347, including medical records and records the release of which is prohibited by state or federal law, unless state or federal law expressly prohibits disclosure of such information even to the person who is the subject of the information. Unless it is determined that the disclosure of medical records to the employee may have an adverse effect upon the employee, the Commission must disclose the medical records to a physician, psychiatrist, or psychologist designated by the employee, rather than to the employee himself.

1981-019 The faculty inventory and the report on faculty services maintained by the Ohio Board of Regents on computer tapes are not public records as 20 U.S.C. 1 232(b)(1) restricts the public release of such.

1981-014 Complaints filed with the Division of Real Estate concerning violations of R.C. Chapter 4735 except those that qualify as confidential law enforcement investigatory records are public records.

1981-006 Employee address and payroll records maintained by a board of township trustees are public records.

1980-103 Trial preparation records include only those records specifically compiled by a governmental unit after the unit’s attention has focused upon a particular person or claim, in reasonable anticipation of a civil or criminal proceeding and does not include those records routinely compiled by a governmental unit as a matter of common practice.

1980-096 Unless made confidential by law, all records maintained by a governmental agency that are necessary to the agency’s execution of its duties and responsibilities are public records; public records must be disclosed upon request to any member of the public for any reason; records made confidential by law and subject to Ohio’s Privacy Act may not be disclosed to the public at large, but must be disclosed to the person who is the subject of the records; records pertaining to confidential law enforcement investigations, trial preparations, and adoptions may not be disclosed to either the public at large nor to the person who is the subject of the records, except adoption records may be disclosed with consent of the court.

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Appendix C 1979-023 As used in R.C. 149.99, ”each offense” means each transaction that results in the removal, destruction, mutilation, transfer or other disposal of records or other damage to records in violation of R.C. 149.351.

1977-075 Pursuant to R.C. 4112.05(B), the Ohio Civil Rights Commission may not reveal the final terms of conciliation, written or unwritten, to members of the general public who are not parties to the matters conciliated.

1977-043 It is not a violation of R.C. 5122.31 to permit unrestricted access to the general and separate indices of mental illness matters filed in the probate court by the public, as they are public records.

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Appendix D Ohio Attorney General Opinions Interpreting Ohio’s Open Meetings Act The following are summaries of the Opinions of the Ohio Attorney General that have addressed or interpreted the Ohio Open Meetings Act. Be aware that the validity of any one opinion may have been affected by a subsequent court opinion or statutory change. The full text of these opinions can be found at http://www.ohioattorneygeneral.gov. 1

2009-034 During a declared emergency, R.C. 5502.24(B) provides a limited exception to fulfilling the requirements of the Ohio Open Meetings Law. A public body may meet at an alternate location, and exercise their powers and functions “in the light of the exigencies of the emergency without regard to or compliance with time-consuming procedures and formalities prescribed by law pertaining thereto.” However, this is not an exception to the “in person” meeting requirement of R.C. 121.22(C) and does not permit the public body to meet by teleconference.

2008-003 Depending on the manner in which it is formed and operated, a nonprofit corporation formed under R.C. 183.061 might be subject to the public records law in R.C. 149.43, the open meetings law in R.C. 121.22, or particular contracting controls governing state agencies.

2007-019 A board of township trustees has authority to maintain order at, approve the minutes of, and provide and distribute a written agenda for its regular meetings.

2000-035 Public hearings conducted by a township board of zoning appeals to consider the matters described in R.C. 519.14(A)-(C) are not “meetings” for purposes of R.C. 121.22, but, rather, are quasi-judicial proceedings. (1985 Op. Atty. Gen. No. 85-044 (syllabus, paragraph two), overruled.); followed by Groeff-Knight v. Brd. of Appeals of Liberty Twnshp, (June 14, 2004) Fifth Dist. No. 03CAH08042.

1

Only opinions after 1994 are available electronically. When searching the full text of these opinions on the AG website use the numbers found in bold above each body of text. If using another search method (such as LexisNexis or Westlaw) the citation format needed will be different. For example if trying to locate the first opinion listed on this page, the format used would be - 2008 Ohio Op. Att’y Gen. No. 019.

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Appendix D 1996-010 Absent adoption of a rule by a county board of mental retardation and developmental disabilities specifying the day on which its annual organizational meeting is to be held, the board’s annual organizational meeting is not one of the regularly scheduled meetings for purposes of the removal provision of R.C. 5126.04.

1995-030 A district advisory council, established pursuant to R.C. 3709.03 has inherent authority to call special meetings of the council by acting through the concurrence of a majority of its members with respect to a particular meeting or by promulgating a procedural rule authorizing specified officers or members of the council to call special meetings; the board of health of a general health district and the state director of health, as expressly provided in R.C. 3709.03, are the only other public authorities with power to call a special meeting of the district advisory council.

1995-001 A PASSPORT administrative agency that is operated by a private not-for-profit agency pursuant to Ohio Admin. Code 5101:3-31-03(A)(1) is a public office as defined at R.C. 149.011(A) for purposes of the public records law and a public body as defined at R.C. 121.22 for purposes of the open meetings law.

1994-096 A committee of private citizens and various public officers or employees that is established by the board of health of a general health district for the purpose of advising the board on matters pertaining to the administration of a state or federal grant program is a public body; where the establishment of the committee is not required or authorized by the terms of the grant or any action of the general health district board, such committee is not a public body.

1994-014 The panel created by the Erie County Court of Common Pleas in Local Rule 17.08(F) is not subject to the open meeting requirements.

1993-012 The Industrial Commission is a public body as defined in R.C. 121.22(B)(1) and is therefore subject to the open meeting requirements of R.C. 121.22; R.C. 4121.36 provides that orders, rules, memoranda, and decisions of the Industrial Commission with respect to hearings conducted under R.C. 4121.36 may be adopted either in a meeting of the commission or by circulation to individual commissioners and thereby establishes an exception to the requirement of R.C. 121.22 that the Industrial Commission adopt all resolutions, rules, or formal actions in an open meeting.

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Appendix D 1992-078 The board of directors of a county agricultural society is a public body subject to the open meeting requirements of R.C. 121.22.

1992-077 An advisory committee legislatively created by a board of county commissioners to make recommendations to the board on matters relating to a proposed county jail is a public body subject to the provisions of R.C. 121.22.

1992-065 A housing advisory board created by a county under R.C. 176.01 is a public body for purposes of R.C.121.22.

1992-032 A board of township trustees must conduct its open meetings in a public meeting place, as determined in its fair and impartial discretion; board of township trustees may not conduct an executive session from which the public is excluded in order to deliberate about a proposed zoning change, even if the board ultimately votes on that matter in an open meeting, unless the deliberations were solely for the purpose of discussing one or more of the six subject areas listed in R.C. 121.22(G).

1992-028 Unless a statutory or constitutional provision expressly grants a specific officer of a public body the power to make the decision to call a meeting of such body, the power to make the decision is vested in the body itself and not in an individual officer; the decision that a meeting is necessary requires a concurrence of a majority of the body; pursuant to R.C. 5715.09, the secretary of the board of revision has the power to call a meeting of the board as necessary.

1988-087 A board of township trustees has authority to adopt reasonable rules for the conduct of its meetings; such rules may not prohibit audio and video recording of township proceedings, but may regulate such recording to promote the orderly transaction of business without unreasonably interfering with the rights of those present.

1988-029 The Public Utilities Commission Nominating Council is a public body as defined in R.C. 121.22.

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Appendix D 1988-003 The word “property” as used in R.C. 121.22(G)(2) means real and personal property, which includes both tangible and intangible property; the PERS may discuss in executive session the purchase or sale of tangible or intangible property authorized under R.C. 145.11, including but not limited to such items as bonds, notes, stocks, shares, securities commercial paper, and debt or equity interests.

1986-091 The Ohio Legal Rights Service Commission is a public body for purposes of R.C. 121.22.

1985-048 The open meeting requirements of R.C. 121.22 and R.C. 305.09 are satisfied where a board of county commissioners convenes a public meeting at which only two of the three members are present and the third member of the board, who is not physically present, participates in such board proceedings by means of communications equipment (prior to enactment of R.C. 121.22(C)).

1985-046 In its development of amendments to the state health plan, the Statewide Health Coordinating Council (SHCC) must, pursuant to R.C. 3702.56(C), follow the procedures set forth in R.C. 119.03(A), (B), (C), and (H), with the exception of requirements imposed pursuant to R.C. 119.03(D), (E), (F), (G), and (I); in particular, the SHCC must follow the public notice and hearing procedures of R.C. 119.03(A) and (C) and must file proposals with the Secretary of State, the Director of the Legislative Service Commission, and the Joint Committee on Agency Rule Review under R.C. 119.03(B) and (H); but proposed amendments to the state health plan are not subject to invalidation by the General Assembly pursuant to R.C. 119.03(I).

1985-044 A township board of zoning appeals is a public body for purposes of R.C. 121.22; a township board of zoning appeals may not conduct, in an executive session, deliberations concerning zoning appeal heard pursuant to R.C. 519.14(A) or (B). (Syllabus, paragraph two, overruled by 2000 Op. Atty. Gen. No. 00-035.)

1982-081 A soldiers’ relief commission established pursuant to R.C. 5901.02 is a public body for the purposes of R.C. 121.22.

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Appendix D 1981-005 Because the superintendent’s offices are, pursuant to R.C. 3319.19, to be used by the county board of education when it is in session, and because the board’s meetings are required by R.C. 121.22 to be open to the public, the duty of the board of county commissioners to provide and equip offices includes the duty to provide some type of conference facility.

1980-083 A county central committee of a political party is a public body and its members are public officials for purposes of R.C. 121.22; convening the committee pursuant to R.C. 305.02 is a meeting as defined by R.C. 121.22(B)(2), even when the number of members present is fewer than the majority of the total membership; the committee may discuss appointment of a person pursuant to its duties under R.C. 305.02 in executive session under R.C. 121.22(G), however, final voting on such appointment must be held in a public meeting; convening the committee for conducting purely internal party affairs unrelated to the committee’s duties of making appointments to vacant public offices is not a meeting as defined by R.C. 121.22(B)(2).

1979-110 The Safety Codes Committee, created by resolution of the Industrial Commission for the purpose of reviewing safety code requirements and drafting revisions for consideration by the Industrial Commission, is not a public body for the purposes of R.C. 121.22.

1979-061 The governing board of a community improvement corporation, organized in the manner provided in R.C. 1702.04 and R.C. 1724.01 to R.C. 1724.09, inclusive, does not constitute a public body for the purposes of R.C. 121.22 unless designated an agency of a county, municipal corporation, or any combination thereof pursuant to R.C. 1724.10.

1978-059 The Internal Security Committee, established by the Industrial Commission and the Bureau of Workers’ Compensation pursuant to R.C. 4121.22(D), is a public body for purposes of R.C. 121.22.

1977-075 Pursuant to R.C. 4112.05(B), the Ohio Civil Rights Commission may not reveal the final terms of conciliation, written or unwritten, to members of the general public who are not parties to the matters conciliated.

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